Vol. 84 Friday, No. 164 August 23, 2019

Pages 44223–44536

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 84, No. 164

Friday, August 23, 2019

Agriculture Department Comptroller of the Currency See Forest Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 44275 Bank Secrecy Act/Money Laundering Risk Assessment, 44352–44353 Bureau of Consumer Financial Protection Guidance Regarding Unauthorized Access to Customer NOTICES Information, 44354–44355 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 44289–44290 Defense Department See Engineers Corps Centers for Disease Control and Prevention PROPOSED RULES NOTICES Federal Acquisition Regulations: Agency Information Collection Activities; Proposals, Orders Issued via Fax or Electronic Commerce, 44270– Submissions, and Approvals, 44308–44316 44272 NOTICES Agency Information Collection Activities; Proposals, Centers for Medicare & Medicaid Services Submissions, and Approvals, 44291 NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 44316 Right of First Refusal of Employment, 44307–44308 Charter Renewal: Civil Rights Commission Federal Advisory Committees, 44290–44291 NOTICES Meetings: Meetings: Defense Advisory Committee on Women in the Services, Alabama Advisory Committee, 44277 44291–44292 Arkansas Advisory Committee, 44276–44277 Economic Analysis Bureau Coast Guard NOTICES RULES Agency Information Collection Activities; Proposals, Safety Zone: Submissions, and Approvals, 44277–44278 Tennessee River, Kentucky Dam Marina Fireworks, Gilbertsville, KY, 44223–44225 Education Department PROPOSED RULES NOTICES Special Local Regulation: Agency Information Collection Activities; Proposals, North Atlantic Ocean, Ocean City, MD, 44263–44266 Submissions, and Approvals: Generic Clearance for Federal Student Aid Customer Commerce Department Satisfaction Surveys and Focus Groups Master Plan, See Economic Analysis Bureau 44293–44294 See Industry and Security Bureau See International Trade Administration Energy Department See National Oceanic and Atmospheric Administration See Western Area Power Administration Engineers Corps Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Meetings: NOTICES Inland Waterways Users Board, 44292–44293 Procurement List; Additions and Deletions, 44287–44288 Environmental Protection Agency Commodity Futures Trading Commission RULES NOTICES Air Quality State Implementation Plans; Approvals and Agency Information Collection Activities; Proposals, Promulgations: Submissions, and Approvals: Arkansas; Revisions to State Implementation Plan Procurement Contracts, 44288–44289 Permitting Programs, 44235–44238 Meetings: Determinations of Attainment by the Attainment Date, Market Risk Advisory Committee, 44288 Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Community Living Administration Moderate for the 2008 Ozone National Ambient Air NOTICES Quality Standards, 44238–44254 Single-Source Cooperative Agreement: Missouri; Revision to Sulfur Dioxide Control Gerontology Institute, University of Massachusetts Requirements for Lake Road Generating Facility, Boston, 44317 44233–44235

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Regional Office Address, 44225–44233 General Services Administration PROPOSED RULES PROPOSED RULES State Hazardous Waste Management Program Revisions: Federal Acquisition Regulations: North Carolina, 44266–44270 Orders Issued via Fax or Electronic Commerce, 44270– NOTICES 44272 Ambient Air Monitoring Reference and Equivalent NOTICES Methods: Agency Information Collection Activities; Proposals, Designation of One New Equivalent Method, 44299– Submissions, and Approvals: 44300 Proposal to Lease Space, 44306–44307 Environmental Impact Statements; Availability, etc.: Right of First Refusal of Employment, 44307–44308 Weekly Receipts, 44295–44296 Meetings: Health and Human Services Department Children’s Health Protection Advisory Committee, 44295 See Centers for Disease Control and Prevention Pesticide Product Registrations: See Centers for Medicare & Medicaid Services Receipt of Applications for a New Site, 44296–44297 See Community Living Administration Proposed High-Priority Substance Designations under the See Food and Drug Administration Toxic Substances Control Act, 44300–44303 See National Institutes of Health Proposed Stipulated Partial Settlement Agreement, RULES Endangered Species Act Claims, 44297–44299 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 44392– Export-Import Bank 44535 NOTICES Application for Final Commitment for a Long-Term Loan or Homeland Security Department Financial Guarantee in Excess of 100 Million, 44304 See Coast Guard RULES Federal Communications Commission Apprehension, Processing, Care, and Custody of Alien PROPOSED RULES Minors and Unaccompanied Alien Children, 44392– Review of Equal Employment Opportunity Compliance and 44535 Enforcement in Broadcast and Multichannel Video Programming Industries, 44270 Industry and Security Bureau NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 44304–44305 Regulations and Procedures Technical Advisory Meetings: Committee, 44278 Communications Security, Reliability, and Interoperability Council, 44305–44306 Interior Department See Fish and Wildlife Service Federal Highway Administration See Land Management Bureau NOTICES See Ocean Energy Management Bureau NOTICES Final Federal Agency Actions on Proposed Highway Privacy Act; Systems of Records, 44321–44326 Realignment in California and Nevada, 44349–44350 Internal Revenue Service Federal Retirement Thrift Investment Board RULES NOTICES Guidance Related to Section 951A (Global Intangible Low- Meetings, 44306 Taxed Income) and Certain Guidance Related to Foreign Tax Credits, 44223 Fish and Wildlife Service PROPOSED RULES NOTICES Determination of the Maximum Value of a Vehicle for Use Permit Applications: with the Fleet-average and Vehicle Cents-per-mile Foreign Endangered Species, 44319–44321 Valuation Rules, 44258–44262 Withholding of Tax and Information Reporting With Food and Drug Administration Respect to Interests in Partnerships Engaged in the NOTICES Conduct of a U.S. Trade or Business; Hearing Meetings: Cancellation, 44262–44263 Vaccines and Related Biological Products Advisory Committee, 44317–44318 International Trade Administration NOTICES Foreign Assets Control Office Antidumping or Countervailing Duty Investigations, Orders, NOTICES or Reviews: Blocking or Unblocking of Persons and Properties, 44355– Certain Amorphous Silica Fabric from the People’s 44356 Republic of China, 44278–44279 Certain Cold-Drawn Mechanical Tubing of Carbon and Forest Service Alloy Steel from India, 44280–44281 NOTICES Certain New Pneumatic Off-the-Road Tires from the Meetings: People’s Republic of China, 44283–44285 Flathead Resource Advisory Committee, 44276 Fine Denier Polyester Staple Fiber from the Republic of New Fee Sites, 44275–44276 Korea, 44279–44280

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Narrow Woven Ribbons with Woven Selvedge from the National Institutes of Health People’s Republic of China, 44281–44283 NOTICES Agency Information Collection Activities; Proposals, International Trade Commission Submissions, and Approvals: NOTICES The Clinical Trials Reporting Program Database (NCI), Complaint: 44318–44319 Certain Bone Cements and Bone Cement Accessories, Meetings: 44332–44333 Center for Scientific Review, 44318 Certain Toner Cartridges, Components Thereof, and National Center for Advancing Translational Sciences, Systems Containing Same, 44331–44332 44319 Investigations; Determinations, Modifications, and Rulings, etc.: National Oceanic and Atmospheric Administration Certain Intraoral Scanners and Related Hardware and PROPOSED RULES Software, 44333–44334 Fisheries Off West Coast States: Certain Mobile Electronic Devices and Radio Frequency Coastal Pelagic Species Fisheries; Biennial Specifications, and Processing Components Thereof (II), 44330– 44272–44274 44331 NOTICES Generalized System of Preferences: Possible Agency Information Collection Activities; Proposals, Modifications, 2018 Review, 44335 Submissions, and Approvals: Glycine from Thailand, 44334–44335 Alaska Notification of Intent to Process Aleutian Islands Light-Walled Rectangular Pipe and Tube from China, Pacific Cod, 44286 Korea, Mexico, and Turkey, 44330 Determination of Overfishing or an Overfished Condition, 44286–44287 Justice Department Permit Application: See Justice Programs Office Marine Mammals; File No. 22851, 44285

Justice Programs Office Nuclear Regulatory Commission NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Coordinating Council on Juvenile Justice and Submissions, and Approvals: Delinquency Prevention, 44336 Access Authorization, 44340–44341 Federal Advisory Committee on Juvenile Justice, 44336– Environmental Assessments; Availability, etc.: 44337 Arizona Public Service Co. Palo Verde Nuclear Labor Department Generating Station Independent Spent Fuel Storage NOTICES Installation, 44339–44340 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ocean Energy Management Bureau Occupational Code Assignment, 44337–44338 NOTICES Requests to Approve Conformed Wage Classifications and Agency Information Collection Activities; Proposals, Unconventional Fringe Benefit Plans Under the Submissions, and Approvals: Davis-Bacon and Related Acts and Contract Work Oil Spill Financial Responsibility for Offshore Facilities, Hours and Safety Standards Act, 44338–44339 44328–44330 Land Management Bureau Overseas Private Investment Corporation NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Meetings; Sunshine Act, 44341 Grand Staircase-Escalante National Monument-Grand Staircase, Kaiparowits, and Escalante Canyon Units Pipeline and Hazardous Materials Safety Administration and Federal Lands Previously Included in the NOTICES Monument that are Excluded from the Boundaries Pipeline Safety: Proposed Resource Management Plans, 44326–44327 Request for Special Permit; Colonial Pipeline Co., 44350– Mount Hope Project, Eureka County, NV, 44327–44328 44351 National Aeronautics and Space Administration Securities and Exchange Commission PROPOSED RULES PROPOSED RULES Federal Acquisition Regulations: Modernization of Regulation S–K Items 101, 103, and 105, Orders Issued via Fax or Electronic Commerce, 44270– 44358–44390 44272 NOTICES NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Agency Information Collection Activities; Proposals, Financial Industry Regulatory Authority, Inc., 44341– Submissions, and Approvals: 44343 Right of First Refusal of Employment, 44307–44308 The Nasdaq Stock Market LLC, 44343–44346 National Highway Traffic Safety Administration Small Business Administration RULES NOTICES Federal Motor Vehicle Safety Standards: Major Disaster Declaration: Electric-Powered Vehicles: Electrolyte Spillage and Missouri, 44346 Electrical Shock Protection, 44254–44257 Oklahoma, 44347

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Surrender of License of Small Business Investment Treasury Department Company, 44346–44347 See Comptroller of the Currency See Foreign Assets Control Office Surface Transportation Board See Internal Revenue Service NOTICES Change in Operators, Lease and Operation Exemption with Interchange Commitment: Western Area Power Administration R. J. Corman Railroad Co./Childersburg Line, LLC; City of NOTICES Childersburg Local Redevelopment Authority, Boulder Canyon Project, 44294–44295 Norfolk Southern Railway Co., Central of Georgia Railroad Co., and CSX Transportation, Inc., 44348– 44349 Separate Parts In This Issue Continuance in Control Exemption: R. J. Corman Railroad Group, LLC and R. J. Corman Railroad Co., LLC; R. J. Corman Railroad Co./ Part II Childersburg Line, LLC, 44347–44348 Securities and Exchange Commission, 44358–44390 Tennessee Valley Authority Part III NOTICES Health and Human Services Department, 44392–44535 Charter Renewal: Homeland Security Department, 44392–44535 Regional Energy Resource Council, 44349 Meetings: Regional Resource Stewardship Council, 44349 Reader Aids Transportation Department Consult the Reader Aids section at the end of this issue for See Federal Highway Administration phone numbers, online resources, finding aids, and notice See National Highway Traffic Safety Administration of recently enacted public laws. See Pipeline and Hazardous Materials Safety Administration To subscribe to the Federal Register Table of Contents NOTICES electronic mailing list, go to https://public.govdelivery.com/ Interim Policies on Page Limits for National Environmental accounts/USGPOOFR/subscriber/new, enter your e-mail Policy Act Documents and the Application of the One address, then follow the instructions to join, leave, or Federal Decision Process to DOT Projects, 44351–44352 manage your subscription.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

8 CFR 212...... 44392 236...... 44392 17 CFR Proposed Rules: 229...... 44358 239...... 44358 240...... 44358 26 CFR 1...... 44223 Proposed Rules: 1 (2 documents) ...... 44258, 44262 33 CFR 165...... 44223 Proposed Rules: 100...... 44263 40 CFR 1...... 44225 21...... 44225 35...... 44225 49...... 44225 52 (4 documents) ...... 44225, 44233, 44235, 44238 59...... 44225 60...... 44225 61...... 44225 62...... 44225 63...... 44225 65...... 44225 81...... 44238 82...... 44225 147...... 44225 272...... 44225 282...... 44225 374...... 44225 707...... 44225 763...... 44225 Proposed Rules: 271...... 44266 45 CFR 410...... 44392 47 CFR Proposed Rules: 73...... 44270 76...... 44270 48 CFR Proposed Rules: 52...... 44270 49 CFR 571...... 44254 50 CFR Proposed Rules: 660...... 44272

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Rules and Regulations Federal Register Vol. 84, No. 164

Friday, August 23, 2019

This section of the FEDERAL REGISTER TABLE 1 TO PARAGRAPH TABLE 1 TO PARAGRAPH contains regulatory documents having general (b)(2)(iv)(B)—Continued (b)(2)(vi)(B)(2) applicability and legal effect, most of which are keyed to and codified in the Code of (ii) B’s pro rata share (60%) of R’s tested income for Year 1 ...... $300x Federal Regulations, which is published under the amount which bears the Less: Reduction under section 951(a)(2)(A) 50 titles pursuant to 44 U.S.C. 1510. same ratio to the subpart F in- for period (1–1 through 3–14) during come of such corporation for which R is not a controlled foreign cor- The Code of Federal Regulations is sold by the taxable year ($100x) as the poration ($300x × 73/365) ...... 60x part of such year during which the Superintendent of Documents. A did not own (within the Tested income for Year 1 as limited by meaning of section 958(a)) under section 951(a)(2)(A) ...... 240x such stock bears to the entire A’s pro rata share of tested income as de- × DEPARTMENT OF THE TREASURY taxable year (146/365) (0.6 termined under § 1.951A–1(d)(2) (0.6 × × $100x (146/365)) ...... 24x $240x) ...... 144x Internal Revenue Service (iii) Amount of reduction under Less: Reduction under section 951(a)(2)(B section 951(a)(2)(B) (lesser of for dividends received by B during Year 1 (i) or (ii)) ...... 15x with respect to the stock of R indirectly 26 CFR Part 1 acquired by A: A’s pro rata share of subpart F income as (i) Dividend received by B determined under section 951(a)(2) ...... 21x [TD 9866] ($100x) multiplied by a fraction 2. On page 29338, Table 1 to ($300x/$400x), the numerator paragraph (b)(2)(vi)(B)(1) should appear of which is the tested income RIN 1545–BO54; 1545–BO62 of such corporation for the tax- as follows: able year ($300x) and the de- Guidance Related to Section 951A nominator of which is the sum TABLE 1 TO PARAGRAPH of the subpart F income and (Global Intangible Low-Taxed Income) (b)(2)(vi)(B)(1) the tested income of such cor- and Certain Guidance Related to poration for the taxable year Foreign Tax Credits ($400x) ($100x × ($300x/ R’s subpart F income for Year 1 ...... $100x $400x)) ...... 75x Less: Reduction under section 951(a)(2)(A) (ii) B’s pro rata share (60%) of Correction for period (1–1 through 3–14) during the amount which bears the which R is not a controlled foreign cor- same ratio to the tested income × In rule document 2019–12437, poration ($100x 73/365) ...... 20x of such corporation for the tax- appearing on pages 29288 through able year ($300x) as the part of Subpart F income for Year 1 as limited by 29370, in the issue of Friday, June 21, such year during which A did section 951(a)(2)(A) ...... 80x not own (within the meaning of 2019 make the following corrections: A’s pro rata share of subpart F income as section 958(a)) such stock determined under section 951(a)(2)(A) 1. On page 29337, Table 1 to × bears to the entire taxable year (0.6 $80x) ...... 48x (73/365) (0.6 × $300x × (73/ paragraph (b)(2)(iv)(B) should appear as Less: Reduction under section 951(a)(2)(B) 365)) ...... 36x follows: for dividends received by B during Year 1 (iii) Amount of reduction under with respect to the stock of R indirectly section 951(a)(2)(B) (lesser of acquired by A: (i) or (ii)) ...... 36x TABLE 1 TO PARAGRAPH (b)(2)(iv)(B) (i) Dividend received by B ($100x) multiplied by a fraction A’s pro rata share of tested income under M’s subpart F income for Year 1 ...... $100x ($100x/$400x), the numerator section 951A(e)(1) ...... 108x Less: Reduction under section 951(a)(2)(A) of which is the subpart F in- for period (1–1 through 5–26) during come of such corporation for [FR Doc. C1–2019–12437 Filed 8–22–19; 8:45 am] which M is not a controlled foreign cor- the taxable year ($100x) and BILLING CODE 1300–01–D poration ($100x × 146/365) ...... 40x the denominator of which is the sum of the subpart F income Subpart F income for Year 1 as limited by and the tested income of such section 951(a)(2)(A) ...... 60x corporation for the taxable year DEPARTMENT OF HOMELAND × A’s pro rata share of subpart F income as ($400x) ($100x ($100x/ SECURITY determined under section 951(a)(2)(A) $400x)) ...... 25x (0.6 × $60x) ...... 36x (ii) B’s pro rata share (60%) of the amount which bears the Coast Guard Less: Reduction under section 951(a)(2)(B) same ratio to the subpart F in- for dividends received by B during Year 1 come of such corporation for with respect to the stock of M acquired by 33 CFR Part 165 the taxable year ($100x) as the A: part of such year during which [Docket Number USCG–2019–0662] (i) Dividend received by B ($15x), A did not own (within the multiplied by a fraction ($100x/ meaning of section 958(a)) RIN 1625–AA00 $100x), the numerator of which such stock bears to the entire is the subpart F income of such taxable year (73/365) (0.6 × Safety Zone; Tennessee River, corporation for the taxable year $100x × (73/365)) ...... 12x ($100x) and the denominator of (iii) Amount of reduction under Kentucky Dam Marina Fireworks, which is the sum of the subpart section 951(a)(2)(B) (lesser of Gilbertsville, KY F income and the tested in- (i) or (ii)) ...... 12x come of such corporation for AGENCY: Coast Guard, DHS. the taxable year ($100x) ($15x A’s pro rata share of subpart F income as × ACTION: ($100x/$100x)) ...... 15x determined under section 951(a)(2) ...... 36x Temporary final rule. 3. On the same page, Table 1 to SUMMARY: The Coast Guard is paragraph (b)(2)(vi)(B)(2) should appear establishing a temporary safety zone for as follows: certain waters of the Tennessee River.

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This action is necessary to ensure safety this rule would be contrary to the public transit around this safety zone, which of life on these navigable waters interest because immediate action is will impact a 350-foot radius designated immediately prior to, during, and after needed to protect the public from the area of the Tennessee River for one hour a pyrotechnics display near Kentucky potential safety hazards associated with and fifteen minutes on August 31, 2019. Dam Marina, Gilbertsville, KY. Entry of a pyrotechnics display. Moreover, the Coast Guard will issue a vessels or persons into this zone is Broadcast Notice to Mariners (BNMs) III. Legal Authority and Need for Rule prohibited unless specifically via VHF–FM marine channel 16 to authorized by the Captain of the Port The Coast Guard is issuing this rule inform mariners about the zone, and the Sector Ohio Valley or a designated under authority in 46 U.S.C. 70034 rule allows vessels to seek permission to representative. (previously 33 U.S.C. 1231). The enter the zone. Captain of the Port Sector Ohio Valley DATES: This rule is effective from 8:45 (COTP) has determined that potential B. Impact on Small Entities p.m. to 10 p.m. on August 31, 2019. hazards associated with a pyrotechnics The Regulatory Flexibility Act of ADDRESSES: To view documents display on August 31, 2019, will be a 1980, 5 U.S.C. 601–612, as amended, mentioned in this preamble as being safety concern for anyone within a 350- requires Federal agencies to consider available in the docket, go to https:// foot radius of the pyrotechnics display. the potential impact of regulations on www.regulations.gov, type USCG–2019– This rule is needed to protect personnel small entities during rulemaking. The 0662 in the ‘‘SEARCH’’ box and click on the navigable waters within the term ‘‘small entities’’ comprises small ‘‘SEARCH.’’ Click on Open Docket safety zone prior to, during, and after a businesses, not-for-profit organizations Folder on the line associated with this pyrotechnics display. that are independently owned and rule. IV. Discussion of the Rule operated and are not dominant in their FOR FURTHER INFORMATION CONTACT: If fields, and governmental jurisdictions you have questions about this proposed This rule establishes a safety zone with populations of less than 50,000. rulemaking, call or email MST2 Dylan from 8:45 p.m. until 10 p.m. on August The Coast Guard certifies under 5 U.S.C. Caikowski, MSU Paducah, U.S. Coast 31, 2019. The safety zone will cover all 605(b) that this rule will not have a Guard; telephone 270–442–1621 ext. navigable waters within a 350-foot significant economic impact on a 2120, email STL-SMB-MSUPaducah- radius from the pyrotechnics launch site substantial number of small entities. [email protected]. at the entrance to Kentucky Dam Marina While some owners or operators of SUPPLEMENTARY INFORMATION: at mile marker 22.6 on the Tennessee vessels intending to transit the safety River. The duration of the zone is I. Table of Abbreviations zone may be small entities, for the intended to protect personnel and reasons stated in section V.A above, this CFR Code of Federal Regulations vessels in these navigable waters prior rule will not have a significant DHS Department of Homeland Security to, during, and after a pyrotechnic economic impact on any vessel owner FR Federal Register display. No vessel or person will be or operator. NPRM Notice of proposed rulemaking permitted to enter the safety zone Under section 213(a) of the Small § Section without obtaining permission from the Business Regulatory Enforcement U.S.C. United States Code COTP or a designated representative. Fairness Act of 1996 (Pub. L. 104–121), II. Background Information and V. Regulatory Analyses we want to assist small entities in Regulatory History We developed this rule after understanding this rule. If the rule The Coast Guard is issuing this considering numerous statutes and would affect your small business, temporary rule without prior notice and Executive orders related to rulemaking. organization, or governmental opportunity to comment pursuant to Below we summarize our analyses jurisdiction and you have questions authority under section 4(a) of the based on a number of these statutes and concerning its provisions or options for Administrative Procedure Act (APA) (5 Executive orders, and we discuss First compliance, please call or email the U.S.C. 553(b)). This provision Amendment rights of protestors. person listed in the FOR FURTHER authorizes an agency to issue a rule INFORMATION CONTACT section. without prior notice and opportunity to A. Regulatory Planning and Review Small businesses may send comments comment when the agency for good Executive Orders 12866 and 13563 on the actions of Federal employees cause finds that those procedures are direct agencies to assess the costs and who enforce, or otherwise determine ‘‘impracticable, unnecessary, or contrary benefits of available regulatory compliance with, Federal regulations to to the public interest.’’ Under 5 U.S.C. alternatives and, if regulation is the Small Business and Agriculture 553(b)(B), the Coast Guard finds that necessary, to select regulatory Regulatory Enforcement Ombudsman good cause exists for not publishing a approaches that maximize net benefits. and the Regional Small Business notice of proposed rulemaking (NPRM) Executive Order 13771 directs agencies Regulatory Fairness Boards. The with respect to this rule because doing to control regulatory costs through a Ombudsman evaluates these actions so would be impracticable. It is budgeting process. This rule has not annually and rates each agency’s impracticable to publish an NPRM been designated a ‘‘significant responsiveness to small business. If you because this safety zone must be regulatory action,’’ under Executive wish to comment on actions by established by August 31, 2019 and we Order 12866. Accordingly, this rule has employees of the Coast Guard, call 1– lack sufficient time to provide a not been reviewed by the Office of 888–REG–FAIR (1–888–734–3247). The reasonable comment period and then Management and Budget (OMB), and Coast Guard will not retaliate against consider those comments before issuing pursuant to OMB guidance it is exempt small entities that question or complain the rule. from the requirements of Executive about this rule or any policy or action Under 5 U.S.C. 553(d)(3), the Coast Order 13771. of the Coast Guard. Guard finds that good cause exists for This regulatory action determination C. Collection of Information making this rule effective less than 30 is based on the size, location, duration, days after publication in the Federal and time-of-day of the safety zone. This rule will not call for a new Register. Delaying the effective date of Vessel traffic will be able to safely collection of information under the

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Paperwork Reduction Act of 1995 (44 Tennessee River in Gilbertsville, KY. It slowest safe speed and comply with all U.S.C. 3501–3520). is categorically excluded from further lawful directions issued by the COTP or review under paragraph L60(a) in Table a designated representative. D. Federalism and Indian Tribal 3–1 of U.S. Coast Guard Environmental (d) Informational broadcasts. The Governments Planning Implementing Procedures. A COTP or a designated representative A rule has implications for federalism Record of Environmental Consideration will issue Broadcast Notice to Mariners under Executive Order 13132, supporting this determination is (BNMs) via VHF–FM marine channel 16 Federalism, if it has a substantial direct available in the docket where indicated to inform mariners about the zone, and effect on the States, on the relationship under ADDRESSES. the rule allows vessels to seek between the national government and permission to enter the zone. the States, or on the distribution of G. Protest Activities power and responsibilities among the The Coast Guard respects the First M.A. Wike, various levels of government. We have Amendment rights of protesters. Commander, U.S. Coast Guard, Acting analyzed this rule under that Order and Protesters are asked to call or email the Captain of the Port, Sector Ohio Valley. have determined that it is consistent person listed in the FOR FURTHER [FR Doc. 2019–18248 Filed 8–22–19; 8:45 am] with the fundamental federalism INFORMATION CONTACT section to BILLING CODE 9110–04–P principles and preemption requirements coordinate protest activities so that your described in Executive Order 13132. message can be received without Also, this rule does not have tribal jeopardizing the safety or security of ENVIRONMENTAL PROTECTION implications under Executive Order people, places or vessels. AGENCY 13175, Consultation and Coordination List of Subjects in 33 CFR Part 165 with Indian Tribal Governments, 40 CFR Parts 1, 21, 35, 49, 52, 59, 60, because it does not have a substantial Harbors, Marine safety, Navigation 61, 62, 63, 65, 82, 147, 272, 282, 374, direct effect on one or more Indian (water), Reporting and recordkeeping 707, and 763 requirements, Security measures, tribes, on the relationship between the [FRL–9998–08–Region 6] Federal Government and Indian tribes, Waterways. or on the distribution of power and For the reasons discussed in the Regional Office Address responsibilities between the Federal preamble, the Coast Guard amends 33 Government and Indian tribes. If you CFR part 165 as follows: AGENCY: Environmental Protection believe this rule has implications for Agency (EPA). federalism or Indian tribes, please call PART 165— REGULATED ACTION: Final rule; technical or email the person listed in the FOR NAVIGATION AREAS AND LIMITED amendments. FURTHER INFORMATION CONTACT section ACCESS AREAS above. SUMMARY: The Environmental Protection ■ 1. The authority citation for part 165 Agency (EPA) is amending its E. Unfunded Mandates Reform Act continues to read as follows: regulations to reflect a change in The Unfunded Mandates Reform Act Authority: 46 U.S.C. 70034, 70051; 33 CFR address and organization names for of 1995 (2 U.S.C. 1531–1538) requires 1.05–1, 6.04–1, 6.04–6, and 160.5; EPA’s Region 6 office. This action is Federal agencies to assess the effects of Department of Homeland Security Delegation editorial in nature and is intended to No. 0170.1. their discretionary regulatory actions. In provide accuracy and clarity to EPA’s particular, the Act addresses actions ■ 2. Add § 165.T08–0662 to read as regulations. follows: that may result in the expenditure by a DATES: This rule is effective on August State, local, or tribal government, in the § 165.T08–0662 Safety Zone; Tennessee 23, 2019. aggregate, or by the private sector of River, Kentucky Dam Marina Fireworks, ADDRESSES: EPA Region 6, 1201 Elm $100,000,000 (adjusted for inflation) or Gilbertsville, KY. Street, Suite 500, Dallas, Texas 75270– more in any one year. Though this rule (a) Location. The safety zone will 2102. will not result in such an expenditure, cover all navigable waters of the FOR FURTHER INFORMATION CONTACT: Carl we do discuss the effects of this rule Tennessee River at mile marker 22.6 elsewhere in this preamble. Young, EPA Region 6, 214–665–6645, within a 350-foot radius from the [email protected]. fireworks launch site on the Kentucky F. Environment SUPPLEMENTARY INFORMATION: Dam Marina break wall in Gilbertsville, This rule We have analyzed this rule under KY. makes editorial changes to various Department of Homeland Security (b) Enforcement period. This section environmental regulations in title 40 of Directive 023–01 and Environmental will be enforced from 8:45 p.m. until 10 the Code of Federal Regulations (CFR) to Planning COMDTINST 5090.1 (series), p.m. on August 31, 2019. reflect a change in address and which guide the Coast Guard in (c) Regulations. (1) In accordance with organization names for the Region 6 complying with the National the general regulations in § 165.23 of office. It does not otherwise impose or Environmental Policy Act of 1969 (42 this part, entry into this zone is amend any requirements. Pursuant to 5 U.S.C. 4321–4370f), and have prohibited unless authorized by the U.S.C. 533 (b)(3)(B) of the determined that this action is one of a Captain of the Port Sector Ohio Valley Administrative Procedure Act (APA), category of actions that do not (COTP) or a designated representative. EPA has found that the public notice individually or cumulatively have a (2) Persons or vessels desiring to enter and comment provisions of the APA, significant effect on the human into or pass through the zone must found at 5 U.S.C. 553(b), do not apply environment. This rule involves a safety request permission from the COTP or a to this rulemaking as public notice and zone lasting only one hour and fifteen designated representative. They may be comment is unnecessary because this minutes that will prohibit the entry of contacted on VHF–FM Channel 16 or by amendment to the regulations provides vessels and persons within a 350-foot phone at 502–779–5400. only technical changes to update an radius of the entrance to Kentucky Dam (3) If permission is granted, all address or an organization name. EPA Marina at mile marker 22.6 on the persons and vessels must transit at their has also determined that there is good

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cause to waive the requirement of 40 CFR Part 60 40 CFR Part 707 publication 30 days in advance of the Administrative practice and Chemicals, Environmental protection, rule’s effective date pursuant to 5 U.S.C. Exports, Hazardous substances, Imports, 553(d)(3) in order for the public to have procedure, Reporting and recordkeeping requirements. Reporting and recordkeeping the correct address and organization requirements. names of EPA Region 6. As this action 40 CFR Part 61 corrects the CFR and does not otherwise 40 CFR Part 763 Reporting and recordkeeping impose or amend any requirements, Administrative practice and requirements. EPA has determined it does not trigger procedure, Asbestos, Intergovernmental any requirements of the statutes and 40 CFR Part 62 relations, Reporting and recordkeeping Executive Orders that govern requirements, Schools. rulemaking procedures. Administrative practice and procedure. Dated: August 13, 2019. List of Subjects Kenley McQueen, 40 CFR Part 63 Regional Administrator, Region 6. 40 CFR Part 1 Administrative practice and Therefore, chapter I of title 40 of the Environmental protection, procedure, Air pollution control, Code of Federal Regulations is amended Organization and functions Environmental protection, Hazardous as follows: (Government agencies). substances, Reporting and recordkeeping requirements. PART 1—STATEMENT OF 40 CFR Part 21 ORGANIZATION AND GENERAL 40 CFR Part 65 INFORMATION Small businesses. Air pollution control, ■ 40 CFR Part 35 Intergovernmental relations, Reporting 1. The authority citation for part 1 and recordkeeping requirements. continues to read as follows: Environmental protection, Air Authority: 5 U.S.C. 552. pollution control, Coastal zone, Grant 40 CFR Part 82 programs-environmental protection, Subpart A—Introduction Grant programs-Indians, Hazardous Administrative practice and waste, Indians, Intergovernmental procedure, Air pollution control, ■ 2. Section 1.7 is amended by revising Chemicals, Exports, Imports, Labeling, relations, Pesticides and pests, paragraph (b)(6) to read as follows: Reporting and recordkeeping Reporting and recordkeeping requirements. § 1.7 Location of principal offices. requirements, Technical assistance, Waste treatment and disposal, Water 40 CFR Part 147 * * * * * pollution control, Water supply. (b) * * * Intergovernmental relations, (6) EPA Region 6, 1201 Elm Street, 40 CFR Part 49 Reporting and recordkeeping Suite 500, Dallas, Texas 75270–2102. requirements. (Arkansas, Louisiana, New Mexico, Administrative practice and Oklahoma, and Texas.) procedure, Air pollution control, 40 CFR Part 272 * * * * * Intergovernmental relations, Reporting Hazardous waste, Intergovernmental and recordkeeping requirements. relations. PART 21—SMALL BUSINESS 40 CFR Part 52 40 CFR Part 282 ■ 3. The authority citation for part 21 continues to read as follows: Administrative practice and Hazardous substances, procedure, Air pollution control, Intergovernmental relations, Oil Authority: 15 U.S.C. 636, as amended by Incorporation by reference, Reporting pollution, Water pollution control, Pub. L. 92–500. and recordkeeping requirements. Water supply. ■ 4. Section 21.3 is amended in the table 40 CFR Part 59 40 CFR Part 374 in paragraph (a) by revising the entry for ‘‘Region VI’’ to read as follows: Air pollution control, Reporting and Administrative practice and recordkeeping requirements, Volatile procedure, Hazardous substances, § 21.3 Submission of applications. organic compounds. Hazardous waste, Superfund. (a) * * *

Region Address State

******* VI ...... Regional Administrator, EPA Region 6, 1201 Elm Arkansas, Louisiana, New Mexico, Oklahoma, and Street, Suite 500, Dallas, Texas 75270–2102. Texas.

*******

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* * * * * § 35.4275 Where can my group get the Authority: 42 U.S.C. 7401 et seq. documents this subpart references (for PART 35—STATE AND LOCAL example Whitehouse OMB circulars, eCFR Subpart C—General Federal ASSISTANCE and tag website, EPA HQ/Regional offices, Implementation Plan Provisions grant forms)? ■ 5. The authority citation for part 35 * * * * * ■ 8. Section 49.162 is amended in table (f) TAG Coordinator or Grants Office, continues to read as follows: 2 in paragraph (g) by revising the entry U.S. EPA Region 6, 1201 Elm Street, for ‘‘Region VI’’ to read as follows: Authority: 42 U.S.C. 4368b, unless Suite 500, Dallas, Texas 75270–2102. otherwise noted. * * * * * § 49.162 Air quality permit by rule for new or modified true minor source auto body Subpart M—Grants for Technical PART 49—INDIAN COUNTRY: AIR repair and miscellaneous surface coating Assistance QUALITY PLANNING AND operations in Indian country. MANAGEMENT * * * * * ■ 6. Section 35.4275 is amended by revising paragraph (f) to read as follows: ■ 7. The authority citation for part 49 (g) * * * continues to read as follows:

TABLE 2—LIST OF REVIEWING AUTHORITIES AND AREAS OF COVERAGE

Address Address for all other EPA Region for notification notification Area covered Phone number of coverage and reports

******* Region VI ...... Air and Radiation Division, Compliance and Enforce- Arkansas, Louisiana, New 800–887–6063 or 214– EPA Region 6, 1201 Elm ment Correspondence: Mexico, Oklahoma, and 665–2760 Street, Suite 500, Mail Enforcement and Com- Texas. Code 6AR, Dallas, Texas pliance Assurance Divi- 75270–2102. sion, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270–2102.

*******

■ 9. Section 49.163 is amended in table § 49.163 Air quality permit by rule for new (f) * * * 1 in paragraph (f) by revising the entry or modified true minor source petroleum for ‘‘Region VI’’ to read as follows: dry cleaning facilities in Indian country. * * * * *

TABLE 1—LIST OF REVIEWING AUTHORITIES AND AREAS OF COVERAGE

Address Address for all other EPA Region for notification notification Area covered Phone number of coverage and reports

******* Region VI ...... Air and Radiation Division, Compliance and Enforce- Arkansas, Louisiana, New 800–887–6063 or 214– EPA Region 6, 1201 Elm ment Correspondence: Mexico, Oklahoma, and 665–2760 Street, Suite 500, Mail Enforcement and Com- Texas. Code 6AR Dallas, Texas pliance Assurance Divi- 75270–2102. sion, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270–2102.

*******

■ 10. Section 49.164 is amended in table § 49.164 Air quality permit by rule for new (f) * * * 1 in paragraph (f) by revising the entry or modified true minor source gasoline for ‘‘Region VI’’ to read as follows: dispensing facilities in Indian country. * * * * *

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TABLE 1—LIST OF REVIEWING AUTHORITIES, AND AREAS OF COVERAGE

Address Address for all other EPA Region for notification notification Area covered Phone number of coverage and reports

******* Region VI ...... Air and Radiation Division, Compliance and Enforce- Arkansas, Louisiana, New 800–887–6063 or 214– EPA Region 6, 1201 Elm ment Correspondence: Mexico, Oklahoma, and 665–2760 Street, Suite 500, Mail Enforcement and Com- Texas. Code 6AR Dallas, Texas pliance Assurance Divi- 75270–2102. sion, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, Texas 75270–2102.

*******

PART 52—APPROVAL AND ar or the Environmental Protection EPA Regional Office, please call (800) PROMULGATION OF Agency, Region 6, 1201 Elm Street, 887–6063 or (214) 665–2760. IMPLEMENTATION PLANS Suite 500, Dallas, Texas 75270–2102. If * * * * * you wish to obtain material from the ■ 11. The authority citation for part 52 EPA Regional Office, please call (800) Subpart GG—New Mexico continues to read as follows: 887–6063 or (214) 665–2760. Authority: 42 U.S.C. 7401 et seq. * * * * * ■ 17. Section 52.1620 is amended by ■ 15. Section 52.173 is amended by revising paragraph (b)(3) to read as Subpart A—General Provisions revising paragraph (c)(25) introductory follows: ■ text to read as follows: 12. Section 52.02 is amended by § 52.1620 Identification of plan. revising paragraph (d)(2)(vi) to read as § 52.173 Visibility protection. follows: * * * * * * * * * * (b) * * * § 52.02 Introduction. (c) * * * (3) Copies of the materials * * * * * (25) Reporting and recordkeeping incorporated by reference may be (d) * * * requirements. Unless otherwise stated (2) * * * all requests, reports, submittals, inspected at https://www.epa.gov/sips- (vi) Arkansas, Louisiana, New notifications, and other communications nm or the Environmental Protection Mexico, Oklahoma, and Texas. to the Regional Administrator required Agency, Region 6, 1201 Elm Street, Environmental Protection Agency, under this paragraph (c) shall be Suite 500, Dallas, Texas 75270–2102. If Region 6, 1201 Elm Street, Suite 500, submitted, unless instructed otherwise, you wish to obtain material from the Dallas, Texas 75270–2102. to the Director, Air and Radiation EPA Regional Office, please call (800) 887–6063 or (214) 665–2760. * * * * * Division, U.S. Environmental Protection Agency, Region 6, to the attention of ■ 13. Section 52.16 is amended by * * * * * Mail Code: AR, at 1201 Elm Street, Suite revising paragraph (b)(6) to read as 500, Dallas, Texas 75270–2102. For each Subpart LL—Oklahoma follows: unit subject to the emissions limitation § 52.16 Submission to Administrator. under this paragraph (c), the owner or ■ 18. Section 52.1920 is amended by * * * * * operator shall comply with the revising paragraph (b)(3) to read as (b) * * * following requirements, unless follows: (6) Arkansas, Louisiana, New Mexico, otherwise specified: Oklahoma, and Texas. Environmental * * * * * § 52.1920 Identification of plan. Protection Agency, Region 6, 1201 Elm * * * * * Subpart T—Louisiana Street, Suite 500, Dallas, Texas 75270– (b) * * * 2102. ■ 16. Section 52.970 is amended by (3) Copies of the materials * * * * * revising paragraph (b)(3) to read as incorporated by reference may be Subpart E—Arkansas follows: inspected at https://www.epa.gov/sips- ok or the Environmental Protection § 52.970 Identification of plan. ■ 14. Section 52.170 is amended by Agency, Region 6, 1201 Elm Street, revising paragraph (b)(3) to read as * * * * * Suite 500, Dallas, Texas 75270–2102. If follows: (b) * * * you wish to obtain material from the (3) Copies of the materials EPA Regional Office, please call (800) § 52.170 Identification of plan. incorporated by reference may be 887–6063 or (214) 665–2760. inspected at https://www.epa.gov/sips- * * * * * * * * * * (b) * * * la or the Environmental Protection (3) Copies of the materials Agency, Region 6, 1201 Elm Street, ■ 19. Section 52.1923 is amended by incorporated by reference may be Suite 500, Dallas, Texas 75270–2102. If revising paragraph (f) introductory text inspected at https://www.epa.gov/sips- you wish to obtain material from the to read as follows:

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§ 52.1923 Best Available Retrofit installation of CEMS as required in this Subpart E—National Volatile Organic Requirements (BART) for SO2 and Interstate section, the owner or operator shall Compound Emission Standards for pollutant transport provisions; What are the comply with the following Aerosol Coatings FIP requirements for Units 4 and 5 of the Oklahoma Gas and Electric Muskogee requirements: ■ plant; and Units 1 and 2 of the Oklahoma * * * * * 26. Section 59.512 is amended by Gas and Electric Sooner plant affecting revising the address for ‘‘EPA Region visibility? PART 59—NATIONAL VOLATILE VI’’ to read as follows: * * * * * ORGANIC COMPOUND EMISSION STANDARDS FOR CONSUMER AND § 59.512 Addresses of EPA Regional (f) Reporting and Recordkeeping Offices. Requirements. Unless otherwise stated COMMERCIAL PRODUCTS * * * * * all requests, reports, submittals, notifications, and other communications ■ 22. The authority citation for part 59 EPA Region VI (Arkansas, Louisiana, to the Regional Administrator required continues to read as follows: New Mexico, Oklahoma, Texas), by this section shall be submitted, Authority: 42 U.S.C. 7414 and 7511b(e). Director, Enforcement and Compliance unless instructed otherwise, to the Assurance Division, 1201 Elm Street, Director, Air and Radiation Division, Subpart B—National Volatile Organic Suite 500, Mail Code 6ECD, Dallas, U.S. Environmental Protection Agency, Compound Emission Standards for Texas 75270–2102. Region 6, to the attention of Mail Code: Automobile Refinish Coatings * * * * * AR, at 1201 Elm Street, Suite 500, Dallas, Texas 75270–2102. For each unit ■ 23. Section 59.107 is amended by PART 60—STANDARDS OF subject to the emissions limitation in revising the address for ‘‘EPA Region PERFORMANCE FOR NEW this section and upon completion of the VI’’ to read as follows: STATIONARY SOURCES installation of CEMS as required in this § 59.107 Addresses of EPA Regional ■ 27. The authority citation for part 60 section, the owner or operator shall Offices. continues to read as follows: comply with the following * * * * * requirements: Authority: 42 U.S.C. 7401 et seq. EPA Region VI (Arkansas, Louisiana, * * * * * New Mexico, Oklahoma, Texas), Subpart A—General Provisions Subpart SS—Texas Director, Enforcement and Compliance Assurance Division, 1201 Elm Street, ■ 28. Section 60.4 is amended in ■ 20. Section 52.2270 is amended by Suite 500, Dallas, Texas 75270–2102. paragraph (a) by revising ‘‘Region VI’’ to revising paragraph (b)(3) to read as * * * * * read as follows: follows: Subpart C—National Volatile Organic § 60.4 Address. § 52.2270 Identification of plan. Compound Emission Standards for (a) * * * * * * * * Consumer Products Region VI (Arkansas, Louisiana, New (b) * * * Mexico, Oklahoma, Texas); Director; (3) Copies of the materials ■ 24. Section 59.210 is amended by Enforcement and Compliance Assurance incorporated by reference may be revising the address for ‘‘EPA Region Division; U.S. Environmental Protection inspected at https://www.epa.gov/sips- VI’’ to read as follows: Agency, 1201 Elm Street, Suite 500, tx or the Environmental Protection Mail Code 6ECD, Dallas, Texas 75270– Agency, Region 6, 1201 Elm Street, § 59.210 Addresses of EPA Regional Offices. 2102. Suite 500, Dallas, Texas 75270–2102. If you wish to obtain material from the * * * * * * * * * * EPA Regional Office, please call (800) EPA Region VI (Arkansas, Louisiana, PART 61—NATIONAL EMISSION 887–6063 or (214) 665–2760. New Mexico, Oklahoma, Texas), Director, Enforcement and Compliance STANDARDS FOR HAZARDOUS AIR * * * * * POLLUTANTS ■ 21. Section 52.2302 is amended by Assurance Division, 1201 Elm Street, Suite 500, Mail Code 6ECD, Dallas, revising paragraph (a)(6) introductory ■ Texas 75270–2102. 29. The authority citation for part 61 text to read as follows: continues to read as follows: * * * * * § 52.2302 Federal implementation plan for Authority: 42 U.S.C. 7401 et seq. regional haze. Subpart D—National Volatile Organic * * * * * Compound Emission Standards for Subpart A—General Provisions (a) * * * Architectural Coatings (6) Reporting and recordkeeping ■ 30. Section 61.04 is amended in requirements. Unless otherwise stated ■ 25. Section 59.409 is amended by paragraph (a) by revising ‘‘Region VI’’ to all requests, reports, submittals, revising the address for ‘‘EPA Region read as follows: notifications, and other communications VI’’ to read as follows: § 61.04 Address. to the Regional Administrator required § 59.409 Addresses of EPA Offices. by this section shall be submitted, (a) * * * unless instructed otherwise, to the * * * * * Region VI (Arkansas, Louisiana, New Director, Air and Radiation Division, EPA Region VI (Arkansas, Louisiana, Mexico, Oklahoma, Texas); Director; U.S. Environmental Protection Agency, New Mexico, Oklahoma, Texas), Enforcement and Compliance Assurance Region 6, to the attention of Mail Code: Director, Enforcement and Compliance Division; U.S. Environmental Protection AR, at 1201 Elm Street, Suite 500, Assurance Division, 1201 Elm Street, Agency, 1201 Elm Street, Suite 500, Dallas, Texas 75270–2102. For each unit Suite 500, Mail Code 6ECD, Dallas, Mail Code 6ECD, Dallas, Texas 75270– subject to the emissions limitation in Texas 75270–2102. 2102. this section and upon completion of the * * * * * * * * * *

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PART 62—APPROVAL AND Subpart A—General Provisions reports, applications, submittals, and PROMULGATION OF STATE PLANS other communications to the FOR DESIGNATED FACILITIES AND ■ 32. Section 62.10 is amended by Administrator pursuant to this part shall POLLUTANTS revising the introductory text and the be submitted in duplicate and addressed entry for ‘‘Region VI’’ in Table 1 to to the appropriate Regional Office of the § 62.10 to read as follows: ■ 31. The authority citation for part 62 Environmental Protection Agency, to continues to read as follows: § 62.10 Submission to Administrator. the attention of the Director, Air and Radiation Division. The Regional Authority: 42 U.S.C. 7401 et seq. Except as otherwise provided in § 60.23 of this chapter, all requests, Offices are as follows:

TABLE 1 TO § 62.10

Region and jurisdiction Address covered

******* VI—Arkansas, Louisiana, New Mexico, Okla- Air and Radiation Division; U.S. Environmental Protection Agency, 1201 Elm Street, Suite 500, homa, Texas. Mail Code 6AR, Dallas, Texas 75270–2102.

*******

PART 63—NATIONAL EMISSION Agency, 1201 Elm Street, Suite 500, Subpart SS—Texas STANDARDS FOR HAZARDOUS AIR Mail Code 6ECD, Dallas, Texas 75270– POLLUTANTS FOR SOURCE 2102. ■ 40. Section 147.2200 is amended by CATEGORIES * * * * * revising paragraph (a) introductory text to read as follows: ■ 33. The authority citation for part 63 PART 82—PROTECTION OF § 147.2200 State administered program— continues to read as follows: STRATOSPHERIC OZONE Class I, III, IV and V wells. Authority: 42 U.S.C. 7401 et seq. * * * * * ■ 37. The authority citation for part 82 (a) Incorporation by reference. The Subpart A—General Provisions continues to read as follows: requirements set forth in the State ■ 34. Section 63.13 is amended in Authority: 42 U.S.C. 7414, 7601, 7671– statutes and regulations cited in this paragraph (a) by revising ‘‘Region VI’’ to 7671q. paragraph are hereby incorporated by read as follows: reference and made part of the Subpart B—Servicing of Motor Vehicle applicable UIC program under SDWA § 63.13 Addresses of State air pollution Air Conditioners for the State of Texas. This control agencies and EPA Regional Offices. incorporation by reference was (a) * * * ■ 38. Section 82.42 is amended by approved by the Director of the Federal EPA Region VI (Arkansas, Louisiana, revising paragraph (a)(1)(iii)(F) to read Register in accordance with 5 U.S.C. New Mexico, Oklahoma, Texas); as follows: 552(a) and 1 CFR part 51. Copies of the Director; Enforcement and Compliance materials that are incorporated by Assurance Division; U.S. Environmental § 82.42 Certification, recordkeeping and reference in this paragraph are available public notification requirements. Protection Agency, 1201 Elm Street, at EPA Region VI, 1201 Elm Street, Suite Suite 500, Mail Code 6ECD, Dallas, (a) * * * 500, Dallas, Texas 75270–2102 or from Texas 75270–2102. (1) * * * the National Archives and Records * * * * * Administration (NARA). If you wish to (iii) * * * obtain material from the EPA Regional PART 65—CONSOLIDATED FEDERAL (F) Owners or lessees of recycling or Office, please call (800) 887–6063 or AIR RULE recovery equipment having their places (214) 665–2760. For information on the of business in Arkansas, Louisiana, New availability of this material at NARA, ■ 35. The authority citation for part 65 Mexico, Oklahoma, Texas must send email [email protected], or go to: continues to read as follows: their certifications to: CAA Section 609 www.archives.gov/federal-register/cfr/ Authority: 42 U.S.C. 7401 et seq. Enforcement Contact, EPA Region 6, ibr-locations.html. 1201 Elm Street, Suite 500, Mail Code * * * * * Subpart A—General Provisions 6ECDAP, Dallas, Texas 75270–2102. * * * * * PART 272—APPROVED STATE ■ 36. Section 65.14 is amended in HAZARDOUS WASTE MANAGEMENT paragraph (a) by revising ‘‘Region VI’’ to PART 147—STATE, TRIBAL, AND PROGRAMS read as follows: EPA–ADMINISTERED UNDERGROUND ■ INJECTION CONTROL PROGRAMS 41. The authority citation for part 272 § 65.14 Addresses. continues to read as follows: (a) * * * Authority: Sections 2002(a), 3006, and Region VI (Arkansas, Louisiana, New ■ 39. The authority citation for part 147 continues to read as follows: 7004(b) of the Solid Waste Disposal Act, as Mexico, Oklahoma, Texas); Director; amended by the Resource Conservation and Compliance Assurance and Enforcement Authority: 42 U.S.C. 300h et seq.; and 42 Recovery Act, as amended, 42 U.S.C. 6912(a), Division; U.S. Environmental Protection U.S.C. 6901 et seq. 6926, and 6974(b).

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Subpart E—Arkansas 1 CFR part 51. You may obtain copies incorporated by reference in this of the Louisiana regulations that are paragraph from the New Mexico ■ 42. Section 272.201 is amended by incorporated by reference in this Commission of Public Records, State revising paragraph (c)(1) introductory paragraph from the Office of the State Records Center and Archives, text to read as follows: Register, P.O. Box 94095, Baton Rouge, Administrative Law Division, 1205 § 272.201 Arkansas State-administered LA 70804–9095; Phone number: (225) Camino Carlos Rey, Santa Fe, NM program: Final authorization. 342–5015; website: https:// 87507. The statutes are available from www.doa.la.gov/Pages/osr/Index.aspx. Conway Greene Company, 1400 East * * * * * 30th Street, Suite #402, Cleveland, OH (c) * * * The statutes are available from West (1) Incorporation by reference. The Publishing Company, 610 Opperman 44114. You may inspect a copy at EPA Arkansas statutes and regulations cited Drive, P.O. Box 64526, St. Paul, Region 6, RCRA Permits Section (LCR– in paragraph (c)(1)(i) of this section are Minnesota 55164 0526; Phone: 1–800– RP), Land, Chemicals and incorporated by reference as part of the 328–4880; website: http:// Redevelopment Division, EPA Region 6, hazardous waste management program west.thomson.com. You may inspect a 1201 Elm Street, Suite 500, Dallas, under subtitle C of RCRA, 42 U.S.C. copy at EPA Region 6, RCRA Permits Texas 75270, (Phone number (214) 665– 6921 et seq. This incorporation by Section (LCR–RP), Land, Chemicals and 8533 or (214) 665–2760), or at the reference is approved by the Director of Redevelopment Division, EPA Region 6, National Archives and Records the Federal Register in accordance with 1201 Elm Street, Suite 500, Dallas, Administration (NARA). For 5 U.S.C. 552(a) and 1 CFR part 51. You Texas 75270, (Phone number (214) 665– information on the availability of this may obtain copies of the Arkansas 8533 or (214) 665–2760), or at the material at NARA, email fedreg.legal@ statutes that are incorporated by National Archives and Records nara.gov, or go to: hwww.archives.gov/ reference in this paragraph from Administration (NARA). For federal-register/cfr/ibr-locations.html. LexisNexis, 9443 Springboro Pike, information on the availability of this * * * * * Miamisburg, Ohio 45342; Phone: (800) material at NARA, email fedreg.legal@ 833–9844; website: http:// nara.gov, or go to: www.archives.gov/ Subpart LL—Oklahoma federal-register/cfr/ibr-locations.html. www.lexisnexis.com/store/us. Copies of ■ 45. Section 272.1851 is amended by the Arkansas regulations that are * * * * * revising paragraph (c)(1) introductory incorporated by reference are available (4) * * * text to read as follows: from the Arkansas Department of (ii) * * * Environmental Quality (ADEQ) website (B) The actual State regulatory text § 272.1851 Oklahoma State-Administered at http://www.adeq.state.ar.us/regs/ authorized by EPA (i.e., without the program: Final authorization. default.htm or the Public Outreach unauthorized amendments) is available (c) * * * Office, ADEQ, 5301 Northshore Drive, as a separate document, Addendum to (1) The Oklahoma statutes and North Little Rock, Arkansas 72118– the EPA-Approved Louisiana Regulatory regulations cited in paragraph (c)(1)(i) of 5317; Phone number: (501) 682–0923. and Statutory Requirements Applicable this section are incorporated by You may inspect a copy at EPA Region to the Hazardous Waste Management reference as part of the hazardous waste 6, RCRA Permits Section (LCR–RP), Program, dated November 2015. Copies management program under subtitle C Land, Chemicals and Redevelopment of the document can be obtained from of RCRA, 42 U.S.C. 6921 et seq. The Division, EPA Region 6, 1201 Elm U.S. EPA Region 6, RCRA Permits Director of the Federal Register Street, Suite 500, Dallas, Texas 75270; Section (LCR–RP), Land, Chemicals and approves this incorporation by reference Phone number: (214) 665–8533 or (214) Redevelopment Division, EPA Region 6, in accordance with 5 U.S.C. 552(a) and 665–2760, or at the National Archives 1201 Elm Street, Suite 500, Dallas, 1 CFR part 51. You may obtain copies and Records Administration (NARA). Texas 75270 or Louisiana Department of of the Oklahoma regulations that are For information on the availability of Environmental Quality, 602 N. Fifth incorporated by reference in this this material at NARA, email Street, Baton Rouge, Louisiana 70884– paragraph from the State’s Office of [email protected], or go to: 2178. Administrative Rules, Secretary of State, www.archives.gov/federal-register/cfr/ * * * * * P.O. Box 53390, Oklahoma City, OK ibr-locations.html. 73152–3390; Phone number: 405–521– * * * * * Subpart GG—New Mexico 4911; website: https://www.sos.ok.gov/ oar/Default.aspx. The statutes are ■ Subpart T—Louisiana 44. Section 272.1601 is amended by available from West Publishing revising paragraph (c)(1) introductory Company, 610 Opperman Drive, P. O. ■ 43. Section 272.951 is amended by text to read as follows: Box 64526, St. Paul, Minnesota 55164 revising paragraphs (c)(1) introductory § 272.1601 New Mexico State- 0526; Phone: 1–800–328–4880; website: text and (c)(4)(ii)(B) to read as follows: Administered Program: Final Authorization. http://west.thomson.com. You may § 272.951 Louisiana State-administered * * * * * inspect a copy at EPA Region 6, RCRA program: Final authorization. (c) * * * Permits Section (LCR–RP), Land, * * * * * (1) The New Mexico statutes and Chemicals and Redevelopment Division, (c) * * * regulations cited in paragraph (c)(1)(i) of EPA Region 6, 1201 Elm Street, Suite (1) The Louisiana statutes and this section are incorporated by 500, Dallas, Texas 75270 (Phone number regulations cited in paragraph (c)(1)(i) of reference as part of the hazardous waste (214) 665–8533 or (214) 665–2760), or at this section are incorporated by management program under subtitle C the National Archives and Records reference as part of the hazardous waste of RCRA, 42 U.S.C. 6921 et seq. The Administration (NARA). For management program under subtitle C Director of the Federal Register information on the availability of this of RCRA, 42 U.S.C. 6921 et seq. The approves this incorporation by reference material at NARA, email fedreg.legal@ Director of the Federal Register in accordance with 5 U.S.C. 552(a) and nara.gov, or go to: www.archives.gov/ approves this incorporation by reference 1 CFR part 51. You may obtain copies federal-register/cfr/ibr-locations.html. in accordance with 5 U.S.C. 552(a) and of the New Mexico regulations that are * * * * *

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Subpart SS—Texas 1201 Elm Street, Suite 500, Dallas, PART 374—PRIOR NOTICE OF Texas 75270. CITIZEN SUITS ■ 46. Section 272.2201 is amended by * * * * * revising paragraphs (c)(1) introductory ■ 50. The authority citation for part 347 text and (c)(4)(i) introductory text to PART 282—APPROVED continues to read as follows: read as follows: UNDERGROUND STORAGE TANK Authority: 42 U.S.C. 9659. PROGRAMS § 272.2201 Texas State-administered ■ 51. Section 374.6 is amended by revising ‘‘Regional Administrator, program: Final authorization. ■ 47. The authority citation for part 282 Region VI’’ to read as follows: (c) * * * continues to read as follows: (1) The Texas statutes and regulations Authority: 42 U.S.C. 6912, 6991c, 6991d, § 374.6 Addresses. cited in paragraph (c)(1)(i) of this and 6991e. * * * * * section are incorporated by reference as Regional Administrator, Region VI, part of the hazardous waste Subpart A—General Provisions U.S. Environmental Protection Agency, management program under Subtitle C 1201 Elm Street, Suite 500, Dallas, of RCRA, 42 U.S.C. 6921 et seq. This ■ 48. Section 282.2 is amended by Texas 75270–2102. incorporation by reference is approved revising paragraph (b)(6) to read as * * * * * by the Director of the Federal Register follows: in accordance with 5 U.S.C. 552(a) and § 282.2 Incorporation by reference. PART 707—CHEMICAL IMPORTS AND 1 CFR part 51. Copies of the Texas EXPORTS regulations that are incorporated by * * * * * reference in this paragraph are available (b)* * * ■ 52. The authority citation for part 707 from West Group Publishing, 610 (6) Region 6 (Arkansas, Louisiana, continues to read as follows: Opperman Drive, Eagan, 55123, New Mexico, Oklahoma, Texas): 1201 Authority: 15 U.S.C. 2611(b) and 2612. ATTENTION: Order Entry; Phone: 1– Elm Street, Suite 500, Dallas, Texas 800–328–9352; website: http:// 75270–2102. Subpart B—General Import Requirements and Restrictions west.thomson.com. You may inspect a * * * * * copy at EPA Region 6, RCRA Permits ■ Section (LCR–RP), Land, Chemicals and Subpart B—Approved State Programs 53. Section 702.20 is amended in Redevelopment Division, Phone paragraph (c)(2)(ii) by revising ‘‘Region VI’’ to read as follows: number: (214) 665–8533 or (214) 665– ■ 49. Section 282.86 is amended by 2760, or at the National Archives and revising paragraph (d)(1)(i) introductory § 707.20 Chemical substances import Records Administration (NARA). For text to read as follows: policy. information on the availability of this * * * * * material at NARA, email fedreg.legal@ § 282.86 Oklahoma State-Administered (c)* * * nara.gov, or go to: www.archives.gov/ Program. federal-register/cfr/ibr-locations.html. * * * * * (2)* * * (ii)* * * * * * * * (d)* * * (4) * * * (1) State statutes and regulations—(i) Region VI (i) The following authorized Incorporation by reference. The 1201 Elm Street, Suite 500, Dallas, provisions of the Texas regulations Oklahoma provisions cited in this Texas 75270–2102 (214–665–2760). include amendments published in the paragraph are incorporated by reference * * * * * Texas Register that are not approved by as part of the underground storage tank EPA. Such unauthorized amendments program under subtitle I of RCRA, 42 PART 763—ASBESTOS are not part of the State’s authorized U.S.C. 6991 et seq. The Director of the ■ program and are, therefore, not Federal Register approves this 54. The authority citation for part 763 Federally enforceable. Thus, incorporation by reference in continues to read as follows: notwithstanding the language in the accordance with 5 U.S.C. 552(a) and 1 Authority: 15 U.S.C. 2605, 2607(c), 2643, Texas hazardous waste regulations CFR part 51. You may obtain copies of and 2646. incorporated by reference at paragraph the Oklahoma regulations that are (c)(1)(i) of this section, EPA will enforce incorporated by reference in this Subpart E—Asbestos Containing the State provisions that are actually paragraph from the State’s Office of Materials in Schools. authorized by EPA. The effective dates Administrative Rules, Secretary of State, ■ 55. Appendix C to Subpart E is of the State’s authorized provisions are P.O. Box 53390, Oklahoma City, OK amended under section II.C.3 by listed in the table in this paragraph 73152–3390; Phone number: 405–521– revising the ‘‘EPA, Region VI’’ to read as (c)(4)(i). The actual State regulatory text 4911; website: https://www.sos.ok.gov/ follows: authorized by EPA (i.e., without the oar/Default.aspx. You may inspect all unauthorized amendments) is available approved material at the EPA Region 6, Appendix C to Subpart E of Part 763— as a separate document, Addendum to 1201 Elm Street, Suite 500, Dallas, Asbestos Model Accreditation Plan the EPA-Approved Texas Regulatory Texas 75270–2102; Phone number (214) 665–2239 or the National Archives and * * * * * and Statutory Requirements Applicable II. * * * to the Hazardous Waste Management Records Administration (NARA). For C. * * * Program, November 2014. Copies of the information on the availability of the 3. * * * document can be obtained from U.S. material at NARA, email fedreg.legal@ EPA, Region VI, (ECD), Asbestos EPA Region 6, RCRA Permits Section nara.gov or go to www.archives.gov/ Coordinator, 1201 Elm Street, Suite 500, (LCR–RP), Land, Chemicals and federal-register/cfr/ibr-locations.html. Dallas, TX 75270, (214) 655–2760. Redevelopment Division, EPA Region 6, * * * * * * * * * *

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■ 56. Appendix D to Subpart E is available only in hard copy form. that is available in the docket for this amended by revising ‘‘Region VI’’ to Publicly available docket materials are action. See 84 FR 27996. read as follows: available through https:// III. Have the requirements for approval www.regulations.gov or please contact Appendix D to Subpart E of Part 763— of a SIP revision been met? the person identified in the FOR FURTHER Transport and Disposal of Asbestos The State submission has met the Waste INFORMATION CONTACT section for additional information. public notice requirements for SIP * * * * * submissions in accordance with 40 CFR FOR FURTHER INFORMATION CONTACT: 51.102. The submission also satisfied Region VI Jonathan Meyer, Environmental the completeness criteria of 40 CFR part Protection Agency, Region 7 Office, Air Asbestos NESHAP Contact, Enforcement 51, appendix V. The State provided and Compliance Assurance Division, USEPA Quality Planning Branch, 11201 Renner public notice on this SIP revision from Region VI, 1201 Elm Street, Suite 500, Mail Boulevard, Lenexa, Kansas 66219; July 30, 2018, to September 6, 2018, and Code 6ECD, Dallas, Texas 75270–2102, (214) telephone number (913) 551–7140; received zero comments. In addition, 655–2760. email address [email protected]. * * * * * the revision meets the substantive SIP [FR Doc. 2019–17747 Filed 8–22–19; 8:45 am] SUPPLEMENTARY INFORMATION: requirements of the CAA, including BILLING CODE 6560–50–P Throughout this document ‘‘we,’’ ‘‘us,’’ section 110 and implementing and ‘‘our’’ refer to the EPA. regulations. Table of Contents IV. What action is the EPA taking? ENVIRONMENTAL PROTECTION AGENCY I. Background We are taking final action to replace II. What is being addressed in this document? the May 25, 2001, St. Joseph Light and 40 CFR Part 52 III. Have the requirements for approval of a Power Consent Decree with the 2015 SIP revision been met? AOC and 2018 Amendment between [EPA–R07–OAR–2019–0289; FRL–9998–42– IV. What action is the EPA taking? Region 7] V. Incorporation by Reference MoDNR and KCPL. VI. Statutory and Executive Order Reviews V. Incorporation by Reference Air Plan Approval; Missouri; Revision to Sulfur Dioxide Control I. Background In this document, the EPA is finalizing regulatory text that includes Requirements for Lake Road On June 17, 2019, the EPA proposed incorporation by reference. In Generating Facility to approve revisions in the Federal accordance with requirements of 1 CFR Register to the Missouri SIP that AGENCY: Environmental Protection 51.5, the EPA is finalizing the replaced a Consent Decree in Missouri’s Agency (EPA). incorporation by reference of the SIP with an AOC between the MoDNR ACTION: Final rule. Missouri Source-Specific Orders and KCPL. See 84 FR 27996. The EPA described in the amendments to 40 CFR SUMMARY: The Environmental Protection also proposed to approve an amendment part 52 set forth below. The EPA has Agency (EPA) is taking final action to to the AOC. The EPA solicited made, and will continue to make, these approve a State Implementation Plan comments on the proposed revision to materials generally available through (SIP) revision submitted by the State of Missouri’s SIP, and did not receive any www.regulations.gov and at the EPA Missouri on November 2, 2018. This comments. final action replaces a Consent Decree in Region 7 Office (please contact the FOR FURTHER Missouri’s SIP with an Administrative II. What is being addressed in this person identified in the Order on Consent (AOC) between the document? INFORMATION CONTACT section of this Missouri Department of Natural preamble for more information). The EPA is approving a SIP revision Therefore, these materials have been Resources (MoDNR) and Kansas City submitted by the State of Missouri on approved by the EPA for inclusion in Power and Light (KCPL). The EPA is November 2, 2018. The revision consists the State implementation plan, have also approving an amendment to the of an AOC between the MoDNR and been incorporated by reference by EPA AOC. This action strengthens Missouri’s KCPL that limits emissions of SO2 from into that plan, are fully federally SIP by replacing an outdated Consent KCPL’s Lake Road Generating facility in enforceable under sections 110 and 113 Decree with an AOC and its St. Joseph, Missouri, and an of the CAA as of the effective date of the Amendment that reflect current Amendment to the AOC. The AOC and final rulemaking of the EPA’s approval, operating conditions at the facility and its Amendment replace a Consent and will be incorporated by reference in does not result in an increase in sulfur Decree in Missouri’s SIP and the next update to the SIP compilation.1 dioxide (SO2) emissions from the Lake strengthens SO2 control requirements Also, in this document, as described Road Generating Facility. for KCPL’s Lake Road Generating in the amendments to 40 CFR part 52 set DATES: This final rule is effective on facility by limiting the types of fuels forth below, the EPA is removing September 23, 2019. that may be combusted in boilers at the provisions of the EPA-Approved ADDRESSES: The EPA has established a facility. This action strengthens Missouri Source-Specific Permits and docket for this action under Docket ID Missouri’s SIP by replacing an outdated Orders from the Missouri State No. EPA–R07–OAR–2019–0289. All Consent Decree with an AOC and its Implementation Plan, which is documents in the docket are listed on Amendment that reflect current incorporated by reference in accordance the https://www.regulations.gov operating conditions at the facility and with the requirements of 1 CFR part 51. website. Although listed in the index, does not result in an increase in SO2 some information is not publicly emissions from the Lake Road VI. Statutory and Executive Order available, i.e., CBI or other information Generating Facility. Reviews whose disclosure is restricted by statute. A detailed discussion of Missouri’s Under the CAA, the Administrator is Certain other material, such as SIP revision was provided in EPA’s June required to approve a SIP submission copyrighted material, is not placed on 17, 2019, Federal Register document the internet and will be publicly and in a Technical Support Document 1 62 FR 27968 (May 22, 1997).

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that complies with the provisions of the Advancement Act (NTTA) because this Administrator of this final rule does not Act and applicable Federal regulations. rulemaking does not involve technical affect the finality of this action for the 42 U.S.C. 7410(k); 40 CFR 52.02(a). standards; and purposes of judicial review nor does it Thus, in reviewing SIP submissions, • Does not provide EPA with the extend the time within which a petition EPA’s role is to approve state choices, discretionary authority to address, as for judicial review may be filed and provided that they meet the criteria of appropriate, disproportionate human shall not postpone the effectiveness of the CAA. Accordingly, this action health or environmental effects, using such rule or action. This action may not merely approves state law as meeting practicable and legally permissible be challenged later in proceedings to Federal requirements and does not methods, under Executive Order 12898 enforce its requirements. (See section impose additional requirements beyond (59 FR 7629, February 16, 1994). 307(b)(2)). those imposed by state law. For that In addition, the SIP is not approved List of Subjects in 40 CFR Part 52 reason, this action: to apply on any Indian reservation land • Is not a significant regulatory action or in any other area where the EPA or Environmental protection, Air subject to review by the Office of an Indian tribe has demonstrated that a pollution control, Carbon monoxide, Management and Budget under tribe has jurisdiction. In those areas of Hydrocarbons, Incorporation by Executive Orders 12866 (58 FR 51735, Indian country, the rule does not have reference, Intergovernmental relations, October 4, 1993) and 13563 (76 FR 3821, tribal implications and will not impose Lead, Nitrogen dioxide, Ozone, January 21, 2011); substantial direct costs on tribal Particulate matter, Reporting and • Is not an Executive Order 13771 (82 governments or preempt tribal law as recordkeeping requirements, Sulfur FR 9339, February 2, 2017) regulatory specified by Executive Order 13175 (65 oxides. FR 67249, November 9, 2000). action because SIP approvals are Dated:August 15, 2019. exempted under Executive Order 12866. The Congressional Review Act, 5 Edward Chu, • Does not impose an information U.S.C. 801 et seq., as added by the Small collection burden under the provisions Business Regulatory Enforcement Acting Regional Administrator, Region 7. of the Paperwork Reduction Act (44 Fairness Act of 1996, generally provides For the reasons stated in the U.S.C. 3501 et seq.); that before a rule may take effect, the preamble, the EPA amends 40 CFR part • Is certified as not having a agency promulgating the rule must 52 as set forth below: significant economic impact on a submit a rule report, which includes a substantial number of small entities copy of the rule, to each House of the PART 52—APPROVAL AND under the Regulatory Flexibility Act (5 Congress and to the Comptroller General PROMULGATION OF U.S.C. 601 et seq.); of the United States. Section 804, IMPLEMENTATION PLANS • Does not contain any unfunded however, exempts from section 801 the mandate or significantly or uniquely following types of rules: rules of ■ 1. The authority citation for part 52 affect small governments, as described particular applicability; rules relating to continues to read as follows: in the Unfunded Mandates Reform Act agency management or personnel; and Authority: 42 U.S.C. 7401 et seq. of 1995 (Pub. L. 104–4); rules of agency organization, procedure, • Does not have federalism or practice that do not substantially Subpart—AA Missouri implications as specified in Executive affect the rights or obligations of non- Order 13132 (64 FR 43255, August 10, agency parties. 5 U.S.C. 804(3). Because ■ 2. In § 52.1320, the table in paragraph 1999); this is a rule of particular applicability, (d) is amended by: • Is not an economically significant EPA is not required to submit a rule ■ a. Revising entry ‘‘(17)’’; and regulatory action based on health or report regarding this action under ■ b. Adding entries ‘‘(32)’’ and ‘‘(33)’’ to safety risks subject to Executive Order section 801. the end of the table. 13045 (62 FR 19885, April 23, 1997); Under section 307(b)(1) of the CAA, The revision and additions read as • Is not a significant regulatory action petitions for judicial review of this follows: subject to Executive Order 13211 (66 FR action must be filed in the United States 28355, May 22, 2001); Court of Appeals for the appropriate § 52.1320 Identification of plan. • Is not subject to requirements of the circuit by October 22, 2019. Filing a * * * * * National Technology Transfer and petition for reconsideration by the (d) * * *

EPA-APPROVED MISSOURI SOURCE-SPECIFIC PERMITS AND ORDERS

State EPA Name of Order/permit effective approval Explanation source number date date

******* (17) St. Joseph Light & Power Consent Decree ...... 5/21/2001 11/15/2001, 66 FR 57389 and Removed and replaced on 8/ SO2. 8/23/2019, [insert Federal 23/2019 with (32) and (33). Register citation].

******* (32) Kansas City Power and Administrative Order on Con- 9/27/2018 8/23/2019, [insert Federal Light—Lake Road Facility. sent No. APCP–2015–118. Register citation]. (33) Kansas City Power and Amendment #1 to Administra- 9/27/2018 8/23/2019, [insert Federal Light—Lake Road Facility. tive Order on Consent No. Register citation]. APCP–2015–118.

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* * * * * I. Background 22, 2012 (effective July 9, 2012), October [FR Doc. 2019–18041 Filed 8–22–19; 8:45 am] The background for this action is 26, 2012 (effective November 18, 2012), BILLING CODE 6560–50–P discussed in detail in our May 31, 2019 and February 26, 2016 (effective March 14, 2016); proposal (84 FR 25218). In that • document we proposed to approve SIP Revisions to Regulation 26, Chapter 3 adopted on August 23, 2002 (effective ENVIRONMENTAL PROTECTION revisions submitted by Arkansas on September 26, 2002), December 5, 2008 AGENCY October 24, 2002, July 26, 2010, (effective January 25, 2009), and November 6, 2012, and March 24, 2017. February 26, 2016 (effective March 14, 40 CFR Part 52 The revisions addressed in that action 2016); [EPA–R06–OAR–2019–0301; FRL–9997–81– include administrative revisions, • Revisions to Regulation 26, Chapter Region 6] revisions that make the Arkansas SIP 4 adopted on August 23, 2002 (effective current with Federal rules, and Air Plan Approval; Arkansas; September 26, 2002), December 5, 2008 revisions that add permit flexibility (effective January 25, 2009), June 22, Revisions to State Implementation provisions to the NSR program.1 Also, Plan Permitting Programs 2012 (effective July 9, 2012), October 26, included in that action was the 2012 (effective November 18, 2012), and AGENCY: Environmental Protection proposed approval of revisions to the February 26, 2016 (effective March 14, Agency (EPA). Arkansas SIP that address EPA’s 2016); previous 2016 disapproval related to ACTION: Final rule. • Revisions to Regulation 26, Chapter biomass deferral language. We did not 5 adopted on December 5, 2008 SUMMARY: Pursuant to the Federal Clean receive any relevant comments (effective January 25, 2009) and Air Act (CAA or the Act), the regarding our proposal. February 26, 2016 (effective March 14, Environmental Protection Agency (EPA) II. Final Action 2016); is approving revisions to the Arkansas • Revisions to Regulation 26, Chapter State Implementation Plan (SIP) We are approving portions of the 6 adopted on August 23, 2002 (effective Permitting Programs submitted on revisions to the Arkansas SIP submitted September 26, 2002), December 5, 2008 October 24, 2002, July 26, 2010, on October 24, 2002, July 26, 2010, (effective January 25, 2009), and November 6, 2012, and March 24, 2017. November 6, 2012, and March 24, 2017. February 26, 2016 (effective March 14, Most of the revisions are administrative Specifically, we are approving the 2016); and following revisions: • in nature and make the SIP current with • Non-substantive revisions Federal rules. In addition, the revisions Revisions to Regulation 19, Chapter throughout the current SIP-approved add permit flexibility provisions to the 4 adopted on December 5, 2008 portions of Regulation 19 and 26 that NSR program. This final action is (effective January 25, 2009), June 22, replace ‘‘Section’’ with ‘‘Reg.’’ within consistent with the requirements of 2012 (effective July 9, 2012), October 26, section headings (e.g., ‘‘Section 26.101’’ section 110 of the CAA. 2012 (effective November 18, 2012), and revised to ‘‘Reg. 26.101’’) that were February 26, 2016 (effective March 14, DATES: This rule is effective on adopted on December 5, 2008 (effective 2016); September 23, 2019. January 25, 2009). • Revisions to Regulation 19, Chapter ADDRESSES: The EPA has established a This action is being taken under 7 adopted on February 26, 2016 section 110 of the Act. EPA is not taking docket for this action under Docket ID (effective March 14, 2016); No. EPA–R06–OAR–2019–0301. All • any action on the portions of the July Revisions to Regulation 19, Chapter 26, 2010 and November 6, 2012 SIP documents in the docket are listed on 9 adopted on February 26, 2016 the https://www.regulations.gov revision submittals that were listed in (effective March 14, 2016); the letter from Arkansas dated March website. Although listed in the index, • Revisions to Regulation 19, Chapter 28, 2019, that requested the withdrawal some information is not publicly 11 adopted on February 26, 2016 of those revisions from EPA’s available, e.g., Confidential Business (effective March 14, 2016); consideration for approval into the Information or other information whose • Revisions to Regulation 19, Arkansas SIP. disclosure is restricted by statute. Appendix A adopted on December 5, Certain other material, such as 2008 (effective January 25, 2009), June III. Incorporation by Reference copyrighted material, is not placed on In this rule, the EPA is finalizing the internet and will be publicly 1 The permit flexibility provisions are found in regulatory text that includes available only in hard copy form. Reg. 19.414, 415, and 416. Reg. 19.414—Operational incorporation by reference. In Publicly available docket materials are Flexibility-Applicant’s Duty to Apply for Alternative Scenarios, allows permittees to accordance with requirements of 1 CFR available either electronically through implement alternative scenarios that were initially 51.5, the EPA is finalizing the https://www.regulations.gov or in hard included in their permit application, without a incorporation by reference the revisions copy at the EPA Region 6 Office, 1201 permit revision or notification to the Department. to the Arkansas regulations as described Elm Street, Suite 500, Dallas, Texas Reg. 19.415—Changes Resulting in No Emissions Increases, allows permittees to make certain in the Final Action section above. The 75270. changes within the facility that otherwise EPA has made, and will continue to FOR FURTHER INFORMATION CONTACT: contravene permit terms without a permit revision make, these materials generally if the changes are not modifications under Title I, Ashley Mohr, EPA Region 6 Office, Air do not exceed emissions allowed under the permit, available through www.regulations.gov Permits Section, 1201 Elm Street, Suite do not violate applicable requirements, and do not and at the EPA Region 6 Office (please 500, Dallas, TX 75270, 214–665–7289, contravene federally enforceable permit terms and contact the person identified in the FOR [email protected]. To inspect the conditions that are monitoring, recordkeeping, FURTHER INFORMATION CONTACT reporting, or compliance certification requirements. section of hard copy materials, please schedule an Reg. 19.416—Permit Flexibility, codifies ADEQ’s this preamble for more information). appointment with Ms. Mohr or Mr. Bill discretion to grant extensions to testing, compliance Therefore, these materials have been Deese at 214–665–7253. or other dates in a permit; to grant a request to approved by EPA for inclusion in the SUPPLEMENTARY INFORMATION: allow temporary emissions and/or testing that would otherwise exceed a limit in a facility’s SIP, have been incorporated by Throughout this document ‘‘we,’’ ‘‘us,’’ permit; and to allow an alternative to monitoring reference by EPA into that plan, are and ‘‘our’’ means the EPA. specified in a facility’s operating permit. fully federally enforceable under

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sections 110 and 113 of the CAA as of Technology Transfer and Advancement List of Subjects in 40 CFR Part 52 the effective date of the final rulemaking Act of 1995 (15 U.S.C. 272 note) because Environmental protection, Air of EPA’s approval, and will be application of those requirements would pollution control, Carbon monoxide, incorporated by reference in the next be inconsistent with the CAA; and Incorporation by reference, Lead, update to the SIP compilation. • Does not provide EPA with the Nitrogen dioxide, Ozone, Particulate IV. Statutory and Executive Order discretionary authority to address, as matter, Reporting and recordkeeping Reviews appropriate, disproportionate human requirements, Sulfur oxides, Volatile health or environmental effects, using Under the Clean Air Act, the organic compounds. practicable and legally permissible Administrator is required to approve a Dated: August 13, 2019. methods, under Executive Order 12898 SIP submission that complies with the (59 FR 7629, February 16, 1994). Kenley McQueen, provisions of the Act and applicable Regional Administrator, Region 6. Federal regulations. 42 U.S.C. 7410(k); In addition, the SIP is not approved 40 CFR 52.02(a). Thus, in reviewing SIP to apply on any Indian reservation land 40 CFR part 52 is amended as follows: or in any other area where EPA or an submissions, the EPA’s role is to PART 52–APPROVAL AND approve state choices, provided that Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of PROMULGATION OF they meet the criteria of the Clean Air IMPLEMENTATION PLANS Act. Accordingly, this action merely Indian country, the rule does not have tribal implications and will not impose approves state law as meeting Federal ■ 1. The authority citation for part 52 substantial direct costs on tribal requirements and does not impose continues to read as follows: additional requirements beyond those governments or preempt tribal law as imposed by state law. For that reason, specified by Executive Order 13175 (65 Authority: 42 U.S.C. 7401 et seq. FR 67249, November 9, 2000). this action: Subpart E—Arkansas • Is not a ‘‘significant regulatory The Congressional Review Act, 5 action’’ subject to review by the Office U.S.C. 801 et seq., as added by the Small ■ 2. In § 52.170, the table in paragraph of Management and Budget under Business Regulatory Enforcement (c), entitled ‘‘EPA-Approved Executive Orders 12866 (58 FR 51735, Fairness Act of 1996, generally provides Regulations in the Arkansas SIP,’’ is October 4, 1993) and 13563 (76 FR 3821, that before a rule may take effect, the amended by January 21, 2011); agency promulgating the rule must ■ a. Revising the entries for Reg. 19.405, • Is not an Executive Order 13771 (82 submit a rule report, which includes a Reg. 19.406, Reg. 19.407, Reg. 19.411, FR 9339, February 2, 2017) regulatory copy of the rule, to each House of the Reg. 19.412, and Reg. 19.413; action because SIP approvals are Congress and to the Comptroller General ■ b. Adding entries for Reg. 19.414, Reg. exempted under Executive Order 12866; of the United States. EPA will submit a • Does not impose an information 19.415, and Reg. 19.416; report containing this action and other ■ collection burden under the provisions c. Revising the entries for Reg. 19.702, required information to the U.S. Senate, Reg. 19.703, Reg. 19.901, and Reg. of the Paperwork Reduction Act (44 the U.S. House of Representatives, and U.S.C. 3501 et seq.); 19.903; • the Comptroller General of the United ■ d. Removing the entry for Section Is certified as not having a States prior to publication of the rule in significant economic impact on a 19.904; the Federal Register. A major rule ■ e. Adding an entry for Reg. 19.904; substantial number of small entities cannot take effect until 60 days after it under the Regulatory Flexibility Act (5 ■ f. Revising the entries for Chapter 11 is published in the Federal Register. and Appendix A; U.S.C. 601 et seq.); This action is not a ‘‘major rule’’ as • Does not contain any unfunded ■ g. Removing the entries for Section defined by 5 U.S.C. 804(2). mandate or significantly or uniquely 26.301, Section 26.302, Section 26.401, affect small governments, described in Under section 307(b)(1) of the Clean Section 26.402, Section 26.407, Section the Unfunded Mandates Reform Act of Air Act, petitions for judicial review of 26.409, Section 26.410, Section 26.501, 1995 (Pub. L. 104–4); this action must be filed in the United Section 26.502, Section 26.601, Section • Does not have federalism States Court of Appeals for the 26.602, Section 26.603, and Section implications as specified in Executive appropriate circuit by October 22, 2019. 26.604; and Order 13132 (64 FR 43255, August 10, Filing a petition for reconsideration by ■ h. Adding entries for Reg. 26.301, Reg. 1999); the Administrator of this final rule does 26.302, Reg. 26.401, Reg. 26.402, Reg. • Is not an economically significant not affect the finality of this action for 26.407, Reg. 26.409, Reg. 26.410, Reg. regulatory action based on health or the purposes of judicial review nor does 26.501, Reg. 26.502, Reg. 26.601, Reg. safety risks subject to Executive Order it extend the time within which a 26.602, Reg. 26.603, and Reg. 26.604. 13045 (62 FR 19885, April 23, 1997); petition for judicial review may be filed, The additions and revisions read as • Is not a significant regulatory action and shall not postpone the effectiveness follows: subject to Executive Order 13211 (66 FR of such rule or action. This action may 28355, May 22, 2001); not be challenged later in proceedings to § 52.170 Identification of plan. • Is not subject to requirements of enforce its requirements. (See section * * * * * section 12(d) of the National 307(b)(2).) (c) * * *

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EPA-APPROVED REGULATIONS IN THE ARKANSAS SIP

State submittal/ State citation Title/subject effective EPA approval date Explanation date

Regulation No. 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control

*******

Chapter 4: Minor Source Review

******* Reg. 19.405 ...... Action on Application ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.406 ...... Public Participation ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.407 ...... Permit Amendments ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

******* Reg. 19.411 ...... General Permits ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.412 ...... Dispersion Modeling ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.413 ...... Confidentiality ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.414 ...... Operational Flexibility-Applicant’s Duty to 07/26/2010 8/23/2019, [Insert Federal Register cita- Apply for Alternative Scenarios. tion]. Reg. 19.415 ...... Changes Resulting in No Emissions In- 03/24/2017 8/23/2019, [Insert Federal Register cita- creases. tion]. Reg. 19.416 ...... Permit Flexibility ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion].

*******

Chapter 7: Sampling, Monitoring, and Reporting Requirements

******* Reg. 19.702 ...... Air Emissions Sampling ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.703 ...... Continuous Emissions Monitoring ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

*******

Chapter 9: Prevention of Significant Deterioration

Reg. 19.901 ...... Title ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

******* Reg. 19.903 ...... Definitions ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 19.904 ...... Adoption of Regulations ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

*******

Chapter 11: Major Source Permitting Procedures

Chapter 11 ...... Major Source Permitting Procedures ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

*******

Appendix A: Insignificant Activities List

Appendix A ...... Insignificant Activities List ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

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EPA-APPROVED REGULATIONS IN THE ARKANSAS SIP—Continued

State submittal/ State citation Title/subject effective EPA approval date Explanation date

*******

Regulation 26: Regulations of the Arkansas Operating Permit Program

Chapter 3: Requirements for Permit Applicability

Reg. 26.301 ...... Requirement for a permit ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.302 ...... Sources subject to permitting ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

Chapter 4: Applications for Permits

Reg. 26.401 ...... Duty to apply ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.402 ...... Standard application form and required in- 03/24/2017 8/23/2019, [Insert Federal Register cita- formation. tion]. Reg. 26.407 ...... Complete application ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.409 ...... Applicant’s duty to supplement correct ap- 07/26/2010 8/23/2019, [Insert Federal Register cita- plication. tion]. Reg. 26.410 ...... Certification by responsible official ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion].

Chapter 5: Action on Application

Reg. 26.501 ...... Action on part 70 permit applications ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.502 ...... Final action on permit application ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

Chapter 6: Permit Review by the Public, Affected States, and EPA

Reg. 26.601 ...... Applicability ...... 07/26/2010 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.602 ...... Public participation ...... 03/24/2017 8/23/2019, [Insert Federal Register cita- tion]. Reg. 26.603 ...... Transmission of permit information to the 03/24/2017 8/23/2019, [Insert Federal Register cita- Administrator. tion]. Reg. 26.604 ...... Review of draft permit by affected States .. 03/24/2017 8/23/2019, [Insert Federal Register cita- tion].

*******

[FR Doc. 2019–18146 Filed 8–22–19; 8:45 am] ACTION: Final rule. Naperville, Illinois-Indiana-Wisconsin; BILLING CODE 6560–50–P Dallas-Fort Worth, Texas; Greater SUMMARY: The Environmental Protection Connecticut, Connecticut; Houston- Agency (EPA) is taking final action for Galveston-Brazoria, Texas; Nevada 11 ozone nonattainment areas that are ENVIRONMENTAL PROTECTION County (Western part), California; New AGENCY classified as ‘‘Moderate’’ for the 2008 ozone national ambient air quality York-North New Jersey-Long Island, 40 CFR Parts 52 and 81 standards (NAAQS). First, the agency is New York-New Jersey-Connecticut; and determining that two Moderate areas— San Diego County, California. The effect [EPA–HQ–OAR–2018–0226; FRL–9998–28– Baltimore, Maryland, and Mariposa of failing to attain by the applicable OAR] County, California—attained the attainment date is that these areas will standards by the July 20, 2018, be reclassified by operation of law to RIN 2060–AT97 applicable attainment date. Second, the ‘‘Serious’’ nonattainment for the 2008 Determinations of Attainment by the agency is granting a 1-year attainment ozone NAAQS on September 23, 2019, Attainment Date, Extensions of the date extension for the two Moderate the effective date of this final rule. Attainment Date, and Reclassification areas in Sheboygan County, Accordingly, the responsible state air of Several Areas Classified as Wisconsin—Inland Sheboygan County, agencies must submit State Moderate for the 2008 Ozone National Wisconsin, and Shoreline Sheboygan Implementation Plan (SIP) revisions and Ambient Air Quality Standards County, Wisconsin. Third, the agency is implement controls to satisfy the determining that seven Moderate areas statutory and regulatory requirements AGENCY: Environmental Protection failed to attain the standards by the for Serious areas for the 2008 ozone Agency (EPA). applicable attainment date—Chicago-

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NAAQS according to the deadlines V. Statutory and Executive Order Reviews to July 20, 2019, for two areas—Denver- established in this final rule. A. Executive Order 12866: Regulatory Boulder-Greeley-Ft. Collins-Loveland, Planning and Review and Executive DATES: This rule is effective on Colorado, and Sheboygan County, Order 13563: Improving Regulation and Wisconsin. The proposed extensions September 23, 2019. Regulatory Review ADDRESSES: The EPA established Docket B. Executive Order 13771: Reducing were based on the states’ specific ID No. EPA–HQ–OAR–2018–0226 for Regulations and Controlling Regulatory requests for such extensions and this action. All documents on the docket Costs compliance with the criteria under CAA are listed at https:// C. Paperwork Reduction Act (PRA) section 181(a)(5)(B) and 40 CFR www.regulations.gov. Although listed in D. Regulatory Flexibility Act (RFA) 51.1107,2 i.e., the fourth highest daily the docket index, some information may E. Unfunded Mandates Reform Act maximum 8-hour average ozone not be publicly available, e.g., (UMRA) concentration recorded in each area F. Executive Order 13132: Federalism Confidential Business Information (CBI) during the attainment year (2017 G. Executive Order 13175: Consultation calendar year) did not exceed the 2008 or other information for which and Coordination With Indian Tribal disclosure is restricted by statute. Governments ozone NAAQS level of 0.075 parts per Certain other material, such as H. Executive Order 13045: Protection of million (ppm), and the states certified copyrighted material, is not placed on Children From Environmental Health that they were in compliance with all the internet and will be publicly and Safety Risks requirements and commitments available only in hard copy form. I. Executive Order 13211: Actions That pertaining to the areas in their Docket materials are available Significantly Affect Energy Supply, respective applicable implementation electronically to the public through Distribution, or Use plans. The EPA proposed that upon the J. National Technology Transfer and http://www.regulations.gov. effective date of a final reclassification Advancement Act (NTTAA) action, the attainment date for these FOR FURTHER INFORMATION CONTACT: For K. Executive Order 12898: Federal Actions further general information on this final To Address Environmental Justice in areas would be extended to July 20, rule, contact Ms. Virginia Raps, Air Minority Populations and Low-Income 2019. Quality Policy Division, Office of Air Populations Third, the EPA proposed to find that Quality Planning and Standards, U.S. L. Congressional Review Act (CRA) seven areas failed to attain the 2008 Environmental Protection Agency, Mail M. Judicial Review ozone NAAQS by the applicable Code: C539–01, Research Triangle Park, I. Proposed Actions attainment date and did not qualify for NC 27711, telephone (919) 541–4383; a 1-year attainment date extension: fax number: (919) 541–5315; email A. Proposed Determinations of Chicago-Naperville, Illinois-Indiana- address: [email protected]. Attainment by the Attainment Date, Wisconsin; Dallas-Fort Worth, Texas; Determinations of Failure To Attain by SUPPLEMENTARY INFORMATION: Greater Connecticut, Connecticut; the Attainment Date and Extensions of Houston-Galveston-Brazoria, Texas; Table of Contents the Attainment Date Nevada County (Western part), I. Proposed Actions On November 14, 2018, the EPA California; New York-North New Jersey- A. Proposed Determinations of Attainment proposed actions to fulfill its statutory Long Island, New York-New Jersey- by the Attainment Date, Determinations obligation under Clean Air Act (CAA or Connecticut; and San Diego County, of Failure To Attain by the Attainment the Act) section 181 to determine California. The proposed determination Date and Extensions of the Attainment whether 11 Moderate ozone for each of these areas was based upon Date nonattainment areas attained the 2008 complete, quality-assured and certified B. Proposed Serious Area SIP Submission Due Dates and RACT Implementation ozone NAAQS by July 20, 2018, the ozone air quality monitoring data that Deadlines applicable attainment date for such showed that the 8-hour ozone design II. Significant Events Following EPA’s areas.1 value for the area exceeded 0.075 ppm November 2018 Proposal First, the EPA proposed to find that for the period 2015–2017. The EPA III. Final Actions two areas—Baltimore, Maryland, and proposed that these seven areas would A. Determinations of Attainment by the Mariposa County, California—attained be reclassified as Serious nonattainment Attainment Date the 2008 ozone NAAQS by the areas by operation of law on the B. Extension of Moderate Area Attainment applicable attainment date based on effective date of a final action finding Date complete, quality-assured and certified that these areas failed to attain the 2008 C. Determinations of Failure To Attain and Reclassification ozone air quality monitoring data for the ozone NAAQS by the applicable 3 D. Serious Area SIP Revision Submission 2015–2017 calendar years. attainment date for Moderate areas. A Deadlines and RACT Implementation Second, the EPA proposed to grant summary of the actions proposed for the Deadlines state requests for a 1-year extension of 11 areas in the November 14, 2018, IV. Environmental Justice Considerations the attainment date from July 20, 2018, document is provided in Table 1.

TABLE 1—SUMMARY OF NOVEMBER 2018 PROPOSAL FOR 2008 OZONE NAAQS MODERATE NONATTAINMENT AREAS

Area failed to attain 2008 2008 Ozone NAAQS 2015–2017 Attained the 2008 ozone 2017 4th highest daily ozone NAAQS but eligible for Moderate Nonattainment design value NAAQS by the moderate maximum 8-hr average 1-year attainment date Area (ppm) attainment date? (ppm) extension

Baltimore, MD ...... 0.075 Attained ...... Not applicable ...... Not applicable. Chicago-Naperville, IL-IN-WI 0.078 Failed to attain ...... 0.079 ...... No. Dallas-Fort Worth, TX ...... 0.079 Failed to attain ...... 0.077 ...... No.

1 83 FR 56781, November 14, 2018 (FR is the 2 CFR is Code of Federal Regulations. 3 See CAA section 181(b)(2)(A). Federal Register).

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TABLE 1—SUMMARY OF NOVEMBER 2018 PROPOSAL FOR 2008 OZONE NAAQS MODERATE NONATTAINMENT AREAS— Continued

Area failed to attain 2008 2008 Ozone NAAQS 2015–2017 Attained the 2008 ozone 2017 4th highest daily ozone NAAQS but eligible for Moderate Nonattainment design value NAAQS by the moderate maximum 8-hr average 1-year attainment date Area (ppm) attainment date? (ppm) extension

Denver-Boulder-Greeley-Ft. 0.079 Failed to attain ...... 0.075 ...... Yes. Collins-Loveland, CO. Greater Connecticut, CT ...... 0.076 Failed to attain ...... 0.078 ...... No. Houston-Galveston-Brazoria, 0.081 Failed to attain ...... 0.079 ...... No. TX. Mariposa County, CA ...... 0.075 Attained ...... Not applicable ...... Not applicable. Nevada County (Western 0.087 Failed to attain ...... 0.090 ...... No. part), CA. New York-N. New Jersey- 0.083 Failed to attain ...... 0.086 ...... No. Long Island, NY-NJ-CT. San Diego County, CA ...... 0.084 Failed to attain ...... 0.090 ...... No. Sheboygan County, WI ...... 0.080 Failed to attain ...... 0.075 ...... Yes.

B. Proposed Serious Area SIP requirements ‘‘according to the would be approximately 18 months after Submission Due Dates and RACT schedules prescribed in connection with the effective date of its final Implementation Deadlines such requirements, except that the reclassification action.6 In the proposal, Administrator may adjust any the EPA requested comment on an In the November 2018 proposal, the applicable deadlines (other than alternative that would allow states to EPA also solicited comment on attainment dates) to the extent such submit SIP revisions addressing RACT adjusting the due dates, in accordance adjustment is necessary or appropriate measures not tied to attainment no later with CAA section 182(i), for SIP to assure consistency among the than 24 months from the effective date submissions and setting deadlines for required submissions.’’ With regard to of the final reclassification action. The implementation of reasonably available RACT, the November 2018 proposal EPA also requested comment on control technology (RACT) for ozone made a distinction between RACT whether a longer timeframe for nonattainment areas that would be measures that would be needed for implementing RACT measures not tied reclassified to Serious. Under CAA purposes of meeting reasonable further to attainment (but no later than January section 181(b)(2), Moderate progress (RFP) requirements or for 1, 2024, i.e., providing 5 years from the nonattainment areas that fail to attain attaining the NAAQS expeditiously, and anticipated date of reclassification,) the 2008 ozone NAAQS by the the possible set of RACT measures that would result in significant emission applicable attainment date for such nevertheless are required to be adopted reductions and improvement in air areas will be reclassified as Serious by and implemented under the CAA but quality. The EPA’s rationale supporting operation of law upon the effective date would not necessarily be needed for a its proposed due dates and deadlines is of the final reclassification action. Each state to meet RFP or demonstrate timely summarized in the following sections. responsible state air agency must attainment in a particular 1. Proposed due date for Serious-area subsequently submit a SIP revision that nonattainment area.4 In this final action, SIP revisions (including RACT measures satisfies the air quality planning these two ‘‘categories’’ of RACT tied to attainment), and Proposed requirements for a Serious area under measures are referred to as ‘‘RACT implementation deadline for RACT CAA section 182(c). measures tied to attainment’’ and measures tied to attainment. The EPA On July 20, 2012, when final ‘‘RACT measures not tied to proposed that states submit all Serious- nonattainment designations became attainment,’’ respectively. area SIP revisions—with the exception of any RACT measures not tied to effective for the 2008 ozone NAAQS, First, the EPA proposed that states attainment—by no later than 12 months states responsible for areas initially submit Serious area SIP revisions after the effective date of the final classified as Serious were required to (including RACT measures tied to reclassification action.7 The state submit SIP revisions by due dates attainment) and implement those RACT relative to that effective date. For those measures no later than 12 months from areas, the SIP submission due dates 6 See 83 FR 56781, November 14, 2018. the effective date of the final 7 ranged from 2 to 4 years after July 20, The EPA has long taken the position that the reclassification action. Second, the EPA statutory requirement for states to assess and adopt 2012, depending on the required SIP proposed the date for submitting SIP RACT for sources in ozone nonattainment areas ‘‘element’’ (e.g., 2 years, or July 20, revisions addressing RACT measures classified Moderate and higher generally exists independently from the attainment planning 2014, for the RACT SIP, and 4 years, or not tied to attainment and implementing July 20, 2016, for the attainment requirements for such areas. See Memo from John those measures as August 3, 2020, Seitz, ‘‘Reasonable Further Progress, Attainment demonstration). Since those dates have which is the deadline for areas Demonstration, and Related Requirements for passed, the EPA proposed in its Ozone Nonattainment Areas Meeting the Ozone classified Moderate and higher for the National Ambient Air Quality Standard’’ (1995), at November 2018 proposal to apply the 2015 ozone NAAQS to submit RACT Administrator’s discretion provided in 5 (explaining that Subpart 2 requirements linked to SIP revisions.5 At the time of proposal, the attainment demonstration are suspended by a CAA section 182(i) to adjust the Serious the EPA estimated that August 3, 2020 finding that a nonattainment area is attaining but area SIP due dates and certain that requirements such as RACT must be met implementation deadlines for newly whether or not an area has attained the standard); 4 See 83 FR 62998, December 6, 2018; 40 CFR see also 40 CFR 51.1118 (suspending attainment reclassified areas. CAA section 182(i) 51.1312(a)(2). demonstrations, RACM, RFP, contingency requires that reclassified areas meet the 5 See 83 FR 62998, December 6, 2018; 40 CFR measures, and other attainment planning SIPs with applicable plan submission 51.1312(a)(2). a finding of attainment). In addition to the

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submittal requirements for reclassified rather than newly start of the final full ozone season nonattainment areas, in general, are designated, classified as Serious and preceding the attainment date, as that is provided under CAA section 172(c); the have therefore been adopting and the last ozone season of air quality SIP requirements that apply specifically implementing control measures to attain monitoring data that could affect the to Serious areas are listed under CAA the 2008 ozone NAAQS for many years. area’s design value as of the attainment section 182(c) and include: (1) The EPA considered the proposed date or would decide whether the area Enhanced monitoring; (2) an attainment timeframe to be consistent with how the met the 1-year extension air quality demonstration and RFP; (3) an EPA handled setting SIP submission eligibility criterion.15 enhanced vehicle inspection and deadlines for other nonattainment areas Due dates for SIP submission often maintenance program, if applicable; (4) that were reclassified from Moderate to precede the deadline for clean-fuel vehicle programs and Serious for past ozone NAAQS. implementation of control strategies transportation control measures; (5) Examples include Dallas-Ft. Worth, contained in those SIP submissions. nonattainment New Source Review Texas,10 an area reclassified in 2010 as However, given the compressed (NSR) program revisions; and (6) Serious for the 1997 8-hour ozone timeframe available for states to meet contingency measures. States must also NAAQS, and the Beaumont-Port Arthur, the July 20, 2021, attainment date for provide an analysis of—and adopt all— Texas,11 and St. Louis, Missouri,12 Serious areas, the EPA considered that, reasonably available control measures nonattainment areas, reclassified in at the very least, it would be appropriate (RACM), including RACT needed for 2003 and 2004, respectively, from to align the due date for RACT SIP purposes of meeting RFP or timely Moderate to Serious for the 1979 1-hour submissions with the deadline for attaining the NAAQS. In the case of ozone NAAQS. Based on these implementation of any new control areas that are reclassified from Moderate examples, the EPA considered that 12 measures contained in that RACT SIP. to Serious for the 2008 ozone NAAQS, months would generally provide the 2. Proposed due date for Serious-area such an analysis should include: (1) An time necessary for states and local air SIP revisions for RACT measures not evaluation of controls for sources districts to finish reviews of available tied to attainment. The EPA proposed emitting 100 tons per year (tpy) or more control measures, adopt revisions to that states submit their SIP revisions by that may have become reasonably necessary attainment strategies, address August 3, 2020, for any RACT not available since the January 1, 2017, other SIP requirements and complete otherwise needed for attainment Moderate area deadline for adopting and the public notice process necessary to purposes, which was based on our implementing RACT, and (2) an adopt and submit timely SIP revisions.13 prediction that such a due date would evaluation of controls for sources The EPA also proposed that any be approximately 18 months after the emitting 50 tpy or more that are RACT that states determine is needed effective date of the final reclassification currently reasonably available, for meeting RFP or timely attainment of action. The proposed August 3, 2020, consistent with the definition of ‘‘major the 2008 ozone NAAQS would need to due date would have aligned the 2008 source’’ or ‘‘major stationary source’’ for be implemented by the date that the ozone Serious area SIP due date for areas classified as Serious.8 attainment plan is due, i.e., no later than RACT measures not tied to attainment In CAA section 182(c), the schedule 12 months after the effective date of the with the SIP revision due dates for for submitting attainment planning final reclassification action. As a general RACT (areas classified Moderate or requirements for Serious areas is 4 years matter, the Act requires implementation higher) and certain other from the effective date of nonattainment of those requirements needed for timely implementation plan elements required 9 designation. As such, in accordance attainment ‘‘as expeditiously as for 2015 ozone NAAQS nonattainment with CAA section 182(i), EPA believed practicable.’’ 14 The EPA considered an areas.16 it was necessary to establish a shorter implementation deadline of 12 months As provided for in CAA section deadline for all areas being reclassified from the anticipated effective date of the 182(i), the Administrator may adjust to Serious, given that a due date 4 years final reclassification action to be deadlines for reclassified areas ‘‘to the beyond reclassification would well consistent with the requirement to act extent such adjustment is necessary or surpass the Serious area attainment date expeditiously. Moreover, at the time of appropriate to assure consistency among of July 20, 2021. EPA therefore proposed the November 2018 proposal, EPA the required submissions.’’ In the a 12-month deadline for the Serious area anticipated that a 12-month deadline November 2018 proposal, the EPA attainment planning requirements would be generally consistent with the interpreted ‘‘consistency among the believing this timeframe to be start of the attainment year ozone season required submissions’’ to allow for appropriate for all the newly reclassified for all 2008 ozone NAAQS Serious areas consideration of ‘‘required submissions’’ areas, given that these areas are being (early 2020). Ideally, all emissions for various ozone NAAQS that are being control strategies designed to help areas implemented simultaneously. Since all independent RACT requirement, states have a attain the 2008 ozone NAAQS by the statutory obligation to apply RACM (including such the areas that are subject to reductions in emissions from existing sources in the applicable Serious area attainment date reclassification to Serious upon the area as may be obtained through implementation of of July 20, 2021, or to qualify for a 1- effective date of this final RACT) to meet RFP requirements and to year extension of that attainment date, reclassification action are also demonstrate attainment as expeditiously as would be in place and in effect for the practicable. Therefore, to the extent that a state designated nonattainment for the 2015 adopts new or additional RACT controls to meet ozone NAAQS or are in the Ozone RFP requirements or to demonstrate attainment as 10 See 75 FR 79302, December 20, 2010, Dallas- Transport Region (OTR), the same state expeditiously as practicable, those states must Ft. Worth, Texas, reclassification to Serious for the air agencies are required under CAA include such RACT revisions with the other SIP 1997 8-hour ozone NAAQS. elements due as part of the attainment plan 11 See 69 FR 16483, March 30, 2004, Beaumont- section 182 to submit SIP revisions for required under CAA sections 172(c) and 182(c) and Port Arthur, Texas, reclassification to Serious for certain SIP elements for the 2015 ozone must implement them by the same date as the 1979 1-hour ozone NAAQS. explained further in Section III.D.3 of this 12 See 68 FR 4836, January 30, 2003, St. Louis, 15 See 40 CFR 51.1108(d). preamble. Missouri, reclassification to Serious for the 1979 1- 16 All the areas reclassified because of this final 8 See CAA section 182(c). hour ozone NAAQS. rule are among those designated nonattainment for 9 See CAA section 182(c)(2) and (i) for SIP 13 Cf. CAA section 179(d)(1). the 2015 ozone NAAQS, effective August 3, 2018 submissions and requirements. 14 See CAA section 172(c)(1). (see 83 FR 25776, June 4, 2018).

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NAAQS within 2 years of the effective provision, which was written for the 1- their proposal the EPA, therefore, also date of the nonattainment area hour ozone NAAQS, established a solicited comment on whether an designations. The effective date of RACT implementation deadline of extended RACT implementation nonattainment area designations for the approximately 5 years from November deadline—beyond August 3, 2020, but 2015 ozone NAAQS was August 3, 15, 1990. In the 2008 ozone NAAQS SIP no later than January 1 of the fifth year 2018, and therefore the due date for Requirements Rule, the EPA interpreted after the effective date of reclassification submitting nonattainment SIP revisions this statutory deadline for the 2008 to Serious (i.e., January 1, 2024)—would associated with that standard is August ozone standard by establishing a RACT yield additional and substantial 3, 2020. Consistent with CAA section implementation deadline of January 1 of emission reductions in newly- 182(i), the EPA considered coordinating the fifth year after the effective date of reclassified Serious areas beyond what the SIP due dates related to the 2008 nonattainment designation, and could be achieved by the due date of and 2015 ozone NAAQS for these explained that this was consistent with August 3, 2020. the maximum timeframe provided nonattainment areas to be ‘‘appropriate’’ II. Significant Events Following EPA’s under the CAA for implementing RACT and could result in more effective November 2018 Proposal implementation of the NAAQS. in nonattainment areas classified 19 Following EPA’s issuance of the Under CAA section 182(i), reclassified Moderate or higher. For November 2018 proposal, two areas generally are required to submit nonattainment areas initially classified significant events occurred which have SIP revisions associated with their new as Moderate or higher for the 2008 ozone NAAQS and for OTR states, bearing on this final rule. First, on classification ‘‘according to the March 26, 2019, the State of Colorado’s schedules prescribed in connection with RACT measures were required to be implemented by January 1, 2017. Governor Jared Polis sent a letter to EPA such requirements.’’ CAA section to withdraw the state’s request for a 1- 182(b)(2), which establishes the RACT Because that date has now passed and cannot be applied to the areas that are year attainment date extension.23 As requirement for ozone nonattainment stated in the Act’s attainment date areas classified as Moderate or above, subject to reclassification to Serious, the EPA proposed to set a new deadline of extension provision for ozone and CAA section 184(b), which nonattainment areas, section 181(a)(5), establishes RACT requirements for August 3, 2020, for implementation of any new RACT requirements not ‘‘[u]pon application by any State,’’ the states in the ozone transport region, otherwise needed for RFP or timely EPA may extend an area’s attainment provide a 24-month schedule for date by 1 year provided certain criteria 17 attainment purposes. compliance with those requirements. This proposed deadline of August 3, are met. The EPA interprets a state’s Although the proposed due date of 2020, was based on EPA’s estimation at application to be a necessary August 3, 2020, would have provided proposal that the date would be prerequisite to granting the 1-year states with less than 24 months to approximately 18 months after the extension.24 Because the Governor has submit their SIP revisions for RACT anticipated effective date of the final withdrawn the request, this rulemaking measures not tied to attainment, the reclassification action. EPA also does not finalize the 1-year extension EPA considered the anticipated proposed the same date for the for the Denver-Greeley-Ft. Collins- timeframe to be ‘‘appropriate’’ given submission due date for related SIP Loveland, CO, nonattainment area for coordination with the 2015 ozone revisions for RACT measures not tied to the 2008 ozone NAAQS. NAAQS SIP due dates and the nature of attainment discussed in Section I.B.2 of Second, since the EPA issued its the submission, i.e., because states with this final reclassification action. November 2018 proposal, the agency newly reclassified Serious areas should Areas originally classified as has taken final action to approve a recently have addressed RACT Moderate and higher for the 2008 ozone request from the State of Wisconsin to requirements commensurate with the NAAQS had just under 5 years to revise the designation for the Sheboygan Moderate area classification, such that implement ozone RACT requirements County nonattainment area for the 1997 their Serious area RACT SIP submittal (by January 1 of the fifth year after the and 2008 primary and secondary ozone should primarily only have to address effective date of designation, i.e., NAAQS, by splitting the historic sources emitting between 50–100 tpy. January 1, 2017). By contrast, areas nonattainment area into two distinct The EPA also requested comment on an reclassified in 2016 from Marginal to nonattainment areas that together cover alternative approach that would have Moderate for the 2008 ozone NAAQS the identical geographic area of allowed states a full 24 months from the became subject to the RACT Sheboygan County, Wisconsin.25 For effective date of the final reclassification requirement less than seven months purposes of this action, the former action to submit SIP revisions for RACT (and in two cases significantly less than Sheboygan County 2008 ozone moderate not otherwise needed for attainment, if seven months) before the RACT nonattainment area is now the ‘‘Inland such additional time would yield implementation deadline.20 21 22 In some Sheboygan County, WI,’’ nonattainment significant emission reductions and reclassified Moderate areas, states may area and the ‘‘Shoreline Sheboygan improvement in air quality. have been able to adopt additional County, WI,’’ area. Because the 3. Implementation deadline for controls as RACT had there been boundary of the two nonattainment Serious-area RACT measures not tied to additional time to implement them. In areas together covers the entire historic attainment. CAA section 182(b)(2) nonattainment area, for which EPA establishes the RACT area requirements respectively, to also fulfill the obligations required of lower-classified areas). 23 See docket item EPA–HQ–OAR–2018–0226– for ozone areas designated and 19 18 See 40 CFR 51.1112(a)(3); 80 FR 12264, 12280, 0059, ‘‘GOV Letter Attainment Extension classified Moderate and higher. That March 6, 2015. withdrawal 3.26.2019.’’ 20 See 81 FR 26697, May 4, 2016. 24 Cf. Del. Dep’t of Natural Res. and Envtl. Control 17 See 40 CFR 51.1112(a)(2). 21 See 81 FR 90207, December 14, 2016, Houston- v. EPA, 895 F.3d 90 (D.C. Cir. 2018) (interpreting 18 CAA Section 182(b)(2) sets the RACT Galveston-Brazoria, Texas, reclassification to section 181(a)(5)’s reference to ‘‘any’’ state literally requirement for Moderate areas, and the Act Moderate for the 2008 8-hour ozone NAAQS. to provide EPA with authority to grant an extension requires other higher-classified areas to fulfill the 22 See 81 FR 91841, December 19, 2016. to a multi-state nonattainment area based on the CAA section 182(b) requirements. See CAA sections Reclassification of the Sheboygan, Wisconsin, extension request of only one state in that area). 182(c), (d), and (e) (requiring states with Serious, nonattainment area to Moderate Nonattainment for 25 See 84 FR 33699, July 15, 2019; effective July Severe, and Extreme nonattainment areas, the 2008 ozone NAAQS. 15, 2019.

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proposed a 1-year extension of the III. Final Actions the Response to Comments document, attainment date for the 2008 ozone The public comment period for EPA’s please go to http://www.regulations.gov NAAQS in November 2018, the EPA is November 2018 proposal closed on and search for Docket No. EPA–HQ– taking final action to grant a 1-year December 14, 2018. To accommodate a OAR–2018–0226, or contact the person extension of the Moderate area request for a public hearing, the listed in the FOR FURTHER INFORMATION attainment date to July 20, 2019 for both comment period was subsequently CONTACT section. areas.26 The EPA may grant a 1-year reopened on February 8, 2019, a public Due to the withdrawal of Colorado’s attainment date extension for the two hearing was held on February 15, 2019, request for a 1-year attainment date areas because air quality data for each and the comment period closed on extension, EPA is not taking final action area, evaluated independently, shows February 22, 2019. for the Denver-Boulder-Greeley-Ft. All comments received during these the 2017 fourth-highest 8-hour ozone Collins-Loveland, CO, nonattainment two public comment periods may be value for the Inland Sheboygan County, area in this final rule. However, EPA is WI, nonattainment area was 0.070 ppm, found in the electronic docket for this final action. In this section describing finalizing the attainment date extension and the corresponding value for the for both portions of the historic Shoreline Sheboygan County, WI, EPA’s final actions, certain key comments and the agency’s responses Sheboygan, Wisconsin, nonattainment nonattainment area was 0.075 ppm. are included. A Response to Comments area (i.e., Inland Sheboygan County, WI, Furthermore, the other statutory criteria document including all significant and Shoreline Sheboygan County, WI), for qualifying for a 1-year attainment comments received on the EPA’s which now counts as two date extension for an ozone proposal and the agency’s responses to nonattainment areas. A summary of 27 nonattainment area are met. those comments is also included in the EPA’s final actions for the 11 Moderate docket for this rulemaking. To access nonattainment areas in provided in the full set of comments received and Table 2.

TABLE 2—2008 OZONE MODERATE NONATTAINMENT AREA FINAL ACTION SUMMARY

Extension of the Attained by the Failed to attain by moderate area 2008 NAAQS nonattainment area attainment date the attainment attainment date to date July 20, 2019

Baltimore, MD ...... X ...... Chicago-Naperville, IL-IN-WI ...... X ...... Dallas-Fort Worth, TX ...... X ...... Greater Connecticut, CT ...... X ...... Houston-Galveston-Brazoria, TX ...... X ...... Mariposa County, CA ...... X ...... Nevada County (Western part), CA ...... X ...... New York-N. New Jersey-Long Island, CT-NJ-NY ...... X ...... San Diego County, CA ...... X ...... Inland Sheboygan County, WI ...... X Shoreline Sheboygan County, WI ...... X

A. Determinations of Attainment by the of attainment by an area’s attainment working with states that choose to Attainment Date date is to discharge the EPA’s obligation submit redesignation requests for the under CAA section 181(b)(2)(A), and to 2008 ozone NAAQS.28 Pursuant to section 181(b)(2)(A) of the establish that, in accordance with CAA Comment: One commenter suggested CAA and 40 CFR 51.1103, the EPA is section 181(b)(2)(A), the area will not be that the record supporting the making final determinations that the reclassified for failure to attain by the Baltimore, Maryland, reclassification Baltimore, MD, and Mariposa County, applicable attainment date. action was incomplete because it CA, Moderate nonattainment areas These determinations of attainment appeared that the state relied on two listed in Table 2 attained the 2008 ozone do not constitute a redesignation to exceptional events claims for Canadian NAAQS by the applicable attainment attainment as provided for under CAA wildfires impacting air quality in date of July 20, 2018. Once effective, section 107(d)(3). Redesignations Baltimore in May and July 2016.29 The this final action satisfies the EPA’s require states to meet additional commenter claimed that the EPA failed obligation pursuant to CAA section statutory criteria, including the EPA to clearly identify the basis for its action 181(b)(2)(A) to determine, based on an approval of a state plan demonstrating in the docket. The commenter also area’s air quality as of the attainment maintenance of the air quality standard suggested that Maryland appears to be date, whether the area attained the for 10 years after redesignation, as the only state to claim that the July 2016 standard by the applicable attainment required under CAA section 175A. As wildfires justified exclusion of any air date. The effect of a final determination for all NAAQS, the EPA is committed to quality data, indicating that Maryland’s

26 See Section III.B of this preamble. planning requirements, for both the Baltimore, 2016) and was delayed until March 21, 2017, due 27 The Wisconsin Department of Natural Maryland, and Mariposa, California, 2008 ozone to a Presidential Directive (82 FR 8499, January 26, Resources requested an extension for the Sheboygan NAAQS nonattainment areas. For Baltimore, 2017). More information about the Clean Data Maryland, the final 2008 ozone NAAQS Clean Data County, WI, nonattainment area and certified its Policy and redesignation guidance is available at Determination was effective on July 1, 2015 (80 FR https://www.epa.gov/ozone-pollution/ implementation plan applicable for the entire 30941, June 1, 2015). For Mariposa, California, EPA historic geographic area. issued a final 2008 ozone NAAQS Clean Data redesignation-and-clean-data-policy-cdp. 28 It is worth noting that EPA issued Clean Data Determination that was initially effective on 29 See comments from Earthjustice, docket item Determinations, which suspend certain attainment February 21, 2017 (81 FR 93624, December 21, EPA–HQ–OAR–2018–0226–0050.

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demonstration and the EPA’s maximum 8-hour average of 0.081 ppm, ozone standards.34 The State’s request acceptance of the data exclusion were and they claimed that for this reason the for voluntary reclassification was arbitrary and not valid. area does not qualify for a 1-year accompanied by a SIP revision that Response: The EPA acknowledges attainment date extension. addresses Serious area attainment, RFP, that it inadvertently omitted from the Response: The EPA does not agree RACM and other planning record for this proposed action the with the commenter because a 1-year requirements.35 The State previously supporting information received from attainment date extension for an ozone submitted a SIP revision to address the Maryland regarding these exceptional nonattainment area is based on air Serious-area RACT requirements on events claims. The EPA therefore issued quality data for the most recent calendar June 7, 2018,36 and a SIP revision to a supplemental proposal in the Federal year prior to the attainment date. This address NSR requirements for the 2008 Register on May 7, 2019.30 This interpretation of CAA section ozone standard on September 6, 2016.37 supplemental proposal made available 181(a)(5)(B) is explained in the SIP In this final action, the EPA is finding the exceptional events demonstration requirements rule for the 2008 ozone that the Nevada County (western part), 32 relied upon by Maryland to support the NAAQS. As noted in Table 1, the California area failed to attain the 2008 exclusion of air quality data for the fourth-highest 8-hour ozone value ozone standard by the applicable Baltimore area due to Canadian wildfire during 2017 for the historic Sheboygan attainment date, which means the area impacts in May and July 2016. County nonattainment area was below will be reclassified to Serious by Comments were solicited for a 15-day the level of the standard. Furthermore, operation of law. The EPA notes that period through May 22, 2019. No as noted in Section II of this preamble, there is no need for the EPA to act on substantive comments requiring a when analyzed separately, the fourth- the request for voluntary reclassification response were received. highest 8-hour ozone value during 2017 because the EPA’s final determination for each of the ‘‘new’’ attainment areas B. Extension of the Moderate Area here results in the same outcome as in Sheboygan County (i.e., Inland would occur with an approval of that Attainment Date Sheboygan County,WI, and Shoreline request—in either scenario, the area Sheboygan County, WI), was below the Pursuant to CAA section 181(a)(5), the would be reclassified to Serious, and level of the standard, and thus EPA is taking final action to grant a 1- subject to the Serious area requirements Sheboygan County, now separated into year extension of the applicable described in CAA section 182(c). attainment date from July 20, 2018, to two nonattainment areas, qualifies for a July 20, 2019, for the two nonattainment 1-year attainment date extension. The EPA received some adverse areas in Sheboygan County, comments on its proposal to determine C. Determinations of Failure To Attain that certain areas failed to attain by the Wisconsin—Inland Sheboygan County, and Reclassification WI, and Shoreline Sheboygan County, applicable attainment date and to WI.31 Pursuant to CAA section 181(b)(2), reclassify those areas to Serious The EPA is not taking final action to the EPA is finalizing its proposed nonattainment. For a discussion of grant a 1-year extension for the Denver determinations that the seven Moderate additional comments received on the area because the State withdrew its nonattainment areas listed in Table 2 proposal and responses to those request for an extension, and the EPA have failed to attain the 2008 ozone comments, please see the Response to interprets that request to be a necessary NAAQS by the applicable attainment Comments document in the docket for prerequisite to an extension of the date of July 20, 2018. Therefore, upon this action. attainment date under CAA section the effective date of this final action, Comment: Several commenters noted 181(a)(5). The EPA is therefore these seven areas will be reclassified, by that when the Chicago area was addressing whether the Denver area operation of law, to Serious for the 2008 designated as nonattainment for the attained the 2008 ozone NAAQS by the ozone NAAQS. Once reclassified to Serious, these areas will be required to July 20, 2018 attainment date and any 34 attain the standard ‘‘as expeditiously as See the December 2, 2018, letter from California associated reclassification in a separate Air Resources Board (CARB) Executive Officer practicable’’ but no later than 9 years action. Richard W. Corey to EPA Region 9 Regional Comment: One commenter opposed after the initial designation as Administrator Michael Stoker, transmitting CARB nonattainment, which in this case Resolution 18–36, and November 14, 2018 letter an attainment date extension for the would be no later than July 20, 2021. If from Northern Sierra Air Quality Management Sheboygan area. The commenter District (NSAQMD) Executive Director Gretchen any of these areas attains the 2008 ozone claimed that because the ‘‘extension Bennitt to CARB Executive Officer Richard W. NAAQS prior to the Serious area Corey, transmitting NSAQMD Resolution 2018–07. year’’ runs from July 2018 to July 2019, attainment date, the relevant state may 35 The Northern Sierra Air Quality Management and the year preceding the Extension request redesignation to attainment, District, which has local jurisdiction over the area, Year runs from July 2017 to July 2018, adopted the Ozone Attainment Plan for Western provided the state can demonstrate that then the relevant monitoring data for Nevada County on October 22, 2018. The California the criteria under CAA section making the CAA section 181(a)(5)(B) Air Resources Board adopted the plan as a revision 107(d)(3)(E) are met.33 to the California SIP on November 15, 2018. extension determination should be from Following the November 2018 36 The Northern Sierra Air Quality Management the July 2017 to July 2018 period. The proposal, the California Air Resources District adopted the Reasonably Available Control commenter noted that during this Board submitted a request under CAA Technology (RACT) State Implementation Plan period, one of the Sheboygan County (SIP) Revision for Western Nevada County 8-hour section 181(b)(3) to voluntarily Ozone Nonattainment Area on March 26, 2018. The monitors recorded a fourth-highest daily reclassify the Nevada County (Western California Air Resources Board Executive Officer part) nonattainment area from Moderate adopted the Plan as a revision to the California SIP 30 See 84 FR 19893, May 7, 2019; and docket item to Serious nonattainment for the 2008 on June 7, 2018. EPA–HQ–OAR–2018–0226–0061. 37 The Northern Sierra Air Quality Management 31 Subsequent to EPA’s proposal to extend the District adopted District Rule 428: New Source 2008 ozone Moderate area attainment deadline for 32 See 80 FR 12292 (March 6, 2015) and 40 CFR Review Requirements for New and Modified Major the Sheboygan County nonattainment area, the EPA 51.1107. Sources in Federally Designated Nonattainment approved Wisconsin’s request to split the area into 33 See more information about the Clean Data Areas on June 27, 2016. The California Air two distinct nonattainment areas. See 84 FR 33699, Policy and redesignation guidance is available at Resources Board Executive Officer adopted the rule July 15, 2019; effective July 15, 2019. See also https://www.epa.gov/ozone-pollution/ as a revision to the California SIP on September 6, Section II of this preamble. redesignation-and-clean-data-policy-cdp. 2016.

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more stringent 2015 ozone NAAQS,38 a any other area that has been reclassified those EPA actions.41 Nevertheless, the portion of Lake County, Indiana, and all to Serious provides the EPA with EPA acknowledges the role interstate of Porter County, Indiana, were quality-assured, certified air quality data transport of precursors to ozone designated as attainment rather than for 2016–2018 that demonstrates pollution plays in the efforts of being included as part of the Chicago, attainment of the 2008 ozone NAAQS, downwind areas to attain and maintain IL-IL-WI, nonattainment area for the the area could be eligible for a clean the NAAQS. The EPA finalized a more stringent 2015 ozone NAAQS. For data determination,39 which would determination in December 2018, the this reason, the commenters oppose the suspend the obligation to submit the ‘‘CSAPR Close Out,’’ that fulfilled its inclusion of these Indiana counties in attainment planning elements so long as statutory obligations under CAA section the reclassification of the Chicago the area continues to attain the 110(a)(2)(D), or the ‘‘good neighbor’’ nonattainment area to Serious for the standard. Such areas would also be able provision, with respect to the 2008 2008 ozone NAAQS. to submit a request for redesignation ozone NAAQS.42 In that determination, Response: Although the Chicago, IL- provided they meet the statutory criteria the EPA’s air quality modeling projected IN-WI, nonattainment area for the 2015 for redesignation, including an that all monitors in the Eastern United ozone NAAQS consists of a smaller approved maintenance plan. States, including those air quality geographic area than the Chicago- Comment: One commenter claimed monitors in Connecticut, would be Naperville, IL-IN-WI, nonattainment attaining and maintaining the NAAQS that Connecticut has failed to attain the area for the 2008 ozone NAAQS, the by 2023, the analytic year used by the 2008 ozone NAAQS by the applicable differences in the geographic extent of agency.43 Id. the nonattainment areas does not attainment date due to emissions it does constitute a revision to the not have authority to control, either D. Serious Area SIP Submission nonattainment area boundary for the because such emissions originate out of Deadlines and RACT Implementation 2008 ozone NAAQS. Under CAA state or are from mobile sources Deadlines section 181(b)(2), when the EPA regulated by EPA. The commenter The EPA received comments on the determines that an area has failed to believes that EPA failed to adequately proposed alternatives for the Serious attain a standard by the applicable address interstate transport of air area deadlines for submitting SIP and attainment date, that area is reclassified pollution under CAA section RACT revisions, and on the deadlines by operation of law to the next higher 110(a)(2)(D) for the 2008 ozone NAAQS for implementation of RACT. After full classification for the area or the when it finalized the 2016 Cross-State consideration of those comments, and classification applicable to the area’s Air Pollution Rule (CSAPR) Update. pursuant to CAA section 182(i), the EPA design value as of the date EPA They claimed that the underlying logic is finalizing the SIP submission due determines the area failed to attain. of this rule was flawed because the EPA dates and RACT implementation Because the Chicago-Naperville, IL-IN- limited its assessment of control deadlines. WI, nonattainment area for the 2008 strategies to those that were feasible to 1. Due date for Serious area SIP ozone NAAQS failed to attain the implement only as late as the 2017 revisions (including RACT measures standard by its Moderate attainment ozone season. The commenter tied to attainment), and implementation date, the EPA is required by the CAA to recommends that the EPA revisit this deadline for RACT measures tied to reclassify the area, not a portion of the transport rule to address longer term attainment. The EPA is finalizing area, to Serious. The boundary of the control strategies that could be feasible August 3, 2020, as the due date for nonattainment area for a different to implement beyond 2017 to benefit air Serious area SIP revisions, including NAAQS, in this case the 2015 ozone quality in areas reclassified to Serious RACT measures tied to attainment. The NAAQS, has no relevance on the EPA’s and beyond. EPA is also finalizing August 3, 2020, as duties with respect to the 2008 ozone Response: The agency’s mandatory the implementation deadline for RACT NAAQS. duty to make determinations of measures tied to attainment. Comment: One commenter suggested attainment or failure to attain the The EPA’s decision to finalize the that the Houston, Texas, area should not NAAQS is contained in CAA section date of August 3, 2020, for these be reclassified to Serious for the 2008 182(b)(2), which does not reference or deadlines was informed by several ozone NAAQS because certain days in make any exclusions based on the factors. The EPA proposed a due date of 2018 were impacted by exceptional nature or effect of transported emissions 12 months from the effective date of a events, and if such events were taken on monitored air quality data in a given final action for these SIP elements and into account, the area would attain the nonattainment area.40 Moreover, to the the implementation deadline for RACT standard based on 2016–2018 data. extent the comment is raising issues measures tied to attainment in its Response: The CAA section related to the EPA’s separate action, the November 2018 proposal. At the time of 181(b)(2)(A) requires the EPA CSAPR Update, to address the proposal, the agency had hoped to issue a timely final action—by January 2019. Administrator to determine whether an requirements of CAA section Under such a scenario, the actual due area attained the 2008 ozone 8-hour 110(a)(2)(D), or the ‘‘good neighbor’’ dates for Serious area SIP submissions NAAQS based on the area’s 2015–2017 provision, with respect to the 2008 and deadlines for implementation of design value as of the attainment date, ozone NAAQS, they are outside the RACT measures tied to attainment July 20, 2018. Based on these data, the scope of this final determination and Houston area is being reclassified to should be addressed in the context of 41 As of the date of signature of this final action, Serious as of the effective date of this litigation over the CSAPR Update is pending in the final action. The EPA will review any 39 More information about the Clean Data Policy D.C. Circuit. State of Wisconsin, et al., v. EPA, No. exceptional events demonstrations that and redesignation guidance is available at https:// 16–1406 (D.C. Cir.). Connecticut is not a petitioner may be provided by Texas in the future, www.epa.gov/ozone-pollution/redesignation-and- or intervenor in this litigation. and the EPA will determine if it concurs clean-data-policy-cdp. 42 See 83 FR 65878, December 21, 2018. 40 See Sierra Club v. EPA, 294 F.3d 155, 160–62 43 As of the date of signature of this final action, with such demonstrations. If Houston or (D.C. Cir. 2002). The Court held that the EPA is not litigation over the CSAPR Close Out is pending in permitted to relax mandatory statutory the D.C. Circuit. State of New York, et al., v. EPA, 38 See 83 FR 25776, June 4, 2018; final rule requirements for downwind areas on the basis of No. 19–1019 (D.C. Cir.). Connecticut is a petitioner effective August 3, 2018. interstate transport. in this litigation.

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would have been January 2020, the addressing RACT measures not tied to submissions. Although the specific date beginning of the final year of the 3-year attainment and proposed for the of August 3, 2020 was not included as period (2018–2020) that would be deadline for implementation of those an option in the November 2018 evaluated to determine whether an area RACT measures. In the November 2018 proposal, the EPA is persuaded by attains the 2008 ozone NAAQS by the proposal, the EPA provided its rationale comments received supporting this date July 20, 2021, Serious-area attainment for proposing August 3, 2020, to provide because setting such a due date date. This intended schedule would for ‘‘consistency among submissions’’ pursuant to the authority of CAA have enabled the state to implement that may be due from a nonattainment section 182(i) could allow states to save controls by the beginning of 2020, the area for more than one NAAQS. For the limited resources by consolidating two last year for which air quality data could reasons provided to proposing the SIPs into a single submission. In impact an area’s ability to timely attain August 3, 2020, due date for SIP addition, given the timing of this final the NAAQS or to achieve qualifying air submissions and the deadline for action, the August 3, 2020 SIP quality for a 1-year extension of the implementation of RACT measures not submission due date will be relatively attainment deadline from July 20, 2021, tied to attainment, the EPA believes that close in time to 12 months after this to July 20, 2022. establishing August 3, 2020, as the due final action becomes effective, The timeliness of the final action was date for Serious-area SIP submissions consistent with due dates established by delayed when the EPA received a (including RACT measures tied to EPA in past ozone reclassification request to schedule a public hearing on attainment) and the implementation actions from Moderate to Serious, which the proposal around the time of the deadline of those RACT measures, was discussed in the proposal. With lapse in government appropriations, would more effectively meet the regard to commenters seeking an 18- otherwise referred to as the Federal objective of having consistency among month period or longer for developing Government shutdown, occurred submissions pursuant to CAA section SIP revisions, the EPA notes that states beginning on December 22, 2018, and 182(i), rather than a deadline that is 12 with areas that were proposed for ended January 25, 2019. Consequently, months from the effective date of this reclassification in November 2018 have while the original public comment final rule. known with a reasonable amount of period for the November 2018 proposal Comment: Some commenters opposed certainty that revised implementation closed on December 14, 2018, the EPA the proposed deadline of 12 months plans would be due in the near future was unable to hold a public hearing in from the effective date of the final action to provide for expeditious attainment of December. As quickly as possible after for SIP submissions and implementation the 2008 ozone NAAQS, and have had the shutdown ended, and the of RACT measures tied to attainment the opportunity to make progress on Government resumed normal because it would not provide a plan development activities before operations, the EPA reopened the public reasonable amount of time to evaluate issuance of this final action. comment period on February 8, 2019, control options, conduct rulemaking, Nonetheless, the EPA recognizes the held the public hearing on February 15, and give affected sources sufficient time challenges posed by these due dates and 2019,44 and closed the public comment to implement control requirements. deadlines and is committed to working period on February 22, 2019. After These commenters preferred a period of closely with states to help them as they considering the time that it would take 18 months or more for Serious Area SIP prepare SIP revisions in a timely to finalize the rule after the lapse in submission due dates and manner. federal government appropriations, the implementation deadlines for RACT 2. Due date for submitting SIP EPA determined that finalizing the measures tied to attainment. Other revisions for RACT measures not tied to Serious area SIP due date and commenters supported the proposed 12- attainment. For SIP revisions for RACT implementation deadline for RACT month due date for SIP submissions and measures not tied to attainment, the measures tied to attainment at 12 implementation deadline for RACT EPA proposed a due date of August 3, months from the effective date of a final measures tied to attainment because 2020, which would have been about 18 rule would result in deadlines falling on they claimed that any additional delay months from the anticipated effective a date close to August 3, 2020. Based on would only extend the duration of date of the final action (anticipated in this revised timing scenario, and unnecessary adverse health impacts on early 2019). The EPA also requested considering comments supporting the nonattainment area residents. One comment on an alternative due date for alignment of SIP due dates and commenter stated that, because the EPA submitting SIP revisions for RACT deadlines for the 2008 and 2015 ozone is directed to streamline SIP submittals measures not tied to attainment that NAAQS, the EPA determined that it when it considers appropriate due dates would have been 24 months from the would be appropriate in this case to after reclassification, the EPA should set effective date of the final action, i.e., finalize a due date for Serious Area SIP a due date for Serious area SIP ‘‘according to the schedule[ ] prescribed revisions, including RACT measures submittals under the 2008 ozone in connection with such 45 tied to attainment, and deadline for NAAQS that is consistent with the requirement[ ].’’ Taking in to account implementation of those RACT August 3, 2020, deadline for the several comments on these proposed measures of August 3, 2020, in order to Moderate area SIP submittals that will dates and the circumstances ensure greater consistency among the be due under the 2015 ozone NAAQS. surrounding the timing of this final submissions and implementation for The commenter indicated that states action, the EPA is finalizing a due date both NAAQS. could realize significant savings of for SIP revisions for RACT measures not More specifically, although the EPA limited state resources if these 2015 tied to attainment of 18 months from the did not propose August 3, 2020, as a ozone Moderate area and 2008 ozone effective date of this final action, as due date for these particular SIP Serious area SIP due dates were explained further below. submissions, the date was proposed as coordinated. The proposal’s due date of August 3, the due date for SIP revisions Response: As discussed earlier, CAA 2020, for RACT submissions not tied to section 182(i) provides authority to the attainment was expected to be roughly 44 EPA is required under the Administrative Administrator to adjust SIP submission 18 months from the effective date of the Procedure Act (APA) to provide adequate notice of due dates as necessary or appropriate to a public hearing (see 5 U.S.C. 553). assure consistency among SIP 45 See CAA section 182(i).

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anticipated final action. By proposing needed for the area to attain. A third approve those RACT SIPs at the state such a date, the EPA recognized that commenter supported the August 2020 level. these measures could reasonably be due date because it would provide for Finally, the EPA is cognizant and in submitted after the attainment year aligned SIP submittal due dates for 2008 agreement with the commenter who ozone season (2020) relevant to the ozone Serious areas and for 2015 ozone stated that a due date of 18 months Serious area attainment date, because Moderate areas. (which was the expected amount of time these measures were explicitly not tied Response: Section 182(i) of the CAA the EPA anticipated with an August 3, to the area’s ability to achieve timely provides that states shall meet 2020, due date) could allow states to attainment. In taking comment on identify additional controls as requirements for reclassified Moderate, providing a due date that accounted for ‘‘reasonably available’’ in comparison Serious and Severe ozone areas a full 24 months to prepare a RACT with the shorter deadline.47 Therefore, ‘‘according to the schedules prescribed submission, the EPA suggested that the EPA believes a due date 18-months in connection with such requirements, such additional time could yield a more from the effective date of this final except that the Administrator may desirable end result in terms of action for submission of certain RACT emissions reductions and air quality adjust any applicable deadlines (other measures not tied to attainment is benefits, reducing state processing and than attainment dates) to the extent appropriate. resource burdens, and/or burden on such adjustment is necessary or 3. Implementation deadline for RACT emissions sources. appropriate to assure consistency among measures not tied to attainment. The While EPA is not electing to finalize the required submissions.’’ EPA proposed two options for the a due date of 24 months from the The EPA notes that the notion implementation deadline for RACT effective date of this action embodied in this provision is consistent measures not tied to attainment: (1) (approximately August 2021), we are with several other CAA provisions to August 3, 2020 or (2) up through the full also electing not to finalize a due date establish a SIP submission due date for 5 years provided by the statute for of August 3, 2020, given that such a date an area that has failed to attain a RACT implementation, i.e., January 1, would provide just under 12 months NAAQS by the relevant attainment date 2024. In proposing the two dates, the from the effective date. Because the that may be shorter than the SIP EPA made several observations. We measures that states identify as submission due date for the first plan noted at the time that ‘‘[i]deally, SIP ‘‘reasonably available’’ are directly tied due after an area is initially designated submission deadlines would precede to the time provided by the EPA in as nonattainment.46 In this case, the the implementation of control strategies establishing such a due date, providing areas that are being reclassified to contained in those SIP submissions.’’ 48 a slightly longer timeframe (i.e., 18 We also noted, in the context of taking months rather than 12 months) to Serious are identifying and adopting RACT measures not tied to attainment comment on a providing a deadline past identify and submit RACT measures not August 3, 2020, but no later than tied to attainment for newly reclassified for a subset of sources emitting between 50–100 tpy of VOC or NOX, because as January 1, 2024, that additional time Serious areas for the 2008 standards provided for implementation of control could lead states to determine that Moderate areas they were already required to address RACT and submit measures ‘‘could lead states to additional controls are reasonable, thus determine that additional controls are helping areas attain both the 2008 and SIPs for sources emitting over 100 tpy. Therefore, the EPA does not agree with reasonable, thus helping areas attain 2015 standards more expeditiously. both the 2008 and 2015 standards more Areas subject to this newer due date the commenter that it is appropriate or expeditiously.’’ Id. In particular, we should have already implemented necessary to extend the due date out to noted that in reclassifying areas from RACT for sources emitting 100 tpy or the July 2021 attainment date (which Marginal to Moderate in 2016 for the more of volatile organic compounds would be nearly 24 months) for 2008 ozone NAAQS after findings of (VOC) or nitrogen oxides (NO ) under submitting SIPs addressing RACT X failure to attain, states were provided their Moderate area requirements. measures not tied to attainment. The less than seven months to implement Therefore, at this stage, states should be EPA is generally in agreement with the RACT. We acknowledged that a more primarily focused on identifying and commenter who stated that aligning generous timeframe for implementing adopting new RACT measures required deadlines between submissions required RACT may have allowed states to adopt to control sources emitting between 50 for the 2015 ozone NAAQS and the additional controls. to 100 tpy of VOC or NOX. The EPA 2008 ozone NAAQS addresses section believes that 18 months would provide Thus, the EPA is finalizing July 20, 182(i)’s call for ‘‘consistency among 2021, the Serious area attainment date, adequate time to adopt any new controls submissions’’ and creates efficiencies determined to be RACT for this group of as the deadline for implementation of for states in preparing submissions. RACT measures not tied to attainment. sources and submit a SIP to the EPA However, a SIP revision submission due accordingly. Given the intervening time between date of August 3, 2020, for RACT proposed and final rules, an August 3, Comment: Several commenters measures not tied to attainment would supported either the proposed August 2020, deadline for implementation of at this point provide the states with less RACT measures not tied to attainment 2020 due date or a due date of 18 than 12 months from the effective date months from the effective date of this would limit the controls that states of this final action to identify and could consider implementing. As noted final action. One commenter stated that evaluate such RACT, and prepare and a period of at least 18 months is needed to properly identify and evaluate 47 Moreover, the EPA notes that CAA section 46 For example, CAA section 179(d) requires a 110(k)(5), which provides the EPA with authority potential controls and conduct state that failed to attain a NAAQS by the to ‘‘establish reasonable deadlines’’ for the necessary rulemaking at the state level. attainment date to submit a revised implementation submission of SIP revisions to address substantial Another commenter believed that there plan within 12 months of an EPA finding of failure inadequacies in the SIP identified by the EPA, was no justification for a due date any to attain. In addition, the requirements for PM10 and states that the EPA may not establish such deadline PM2.5 nonattainment areas in CAA section 189(d) ‘‘to exceed 18 months after the date of such notice.’’ earlier than the July 2021 Serious-area require a Serious area to submit a revised While this provision is not directly applicable here, attainment date because this SIP implementation plan within 12 months of a failure the EPA believes it is informative. submission would be for RACT not to attain the standard. 48 See 83 FR 56781, November 14, 2018.

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in the proposal, the EPA believes that V. Statutory and Executive Order create any new requirements beyond there is a direct relationship between Reviews what is mandated by the CAA. Instead, the amount of time provided for this rulemaking only makes factual A. Executive Order 12866: Regulatory implementation of RACT measures not determinations, and does not directly Planning and Review and Executive tied to attainment and the actual regulate any entities. Order 13563: Improving Regulation and measures that will be available to states Regulatory Review to install or implement. We also E. Unfunded Mandates Reform Act continue to believe that a slightly longer This action is not a significant (UMRA) timeframe for measures that are not regulatory action and was therefore not This action does not contain any directly tied to the area’s attainment can submitted to the Office of Management unfunded mandate as described in be appropriate, especially where an area and Budget (OMB) for review. UMRA, 2 U.S.C. 1531–1538,50 and does is simultaneously implementing two B. Executive Order 13771: Reducing not significantly or uniquely affect small ozone standards, such that additional Regulations and Controlling Regulatory governments. This action imposes no controls will help the area attain both Costs enforceable duty on any state, local or standards more expeditiously. On the tribal governments or the private sector. other hand, the outside timeframe This action is not an Executive Order proposed by the EPA for 13771 regulatory action because this F. Executive Order 13132: Federalism implementation of RACT measures not action is not significant under Executive tied to attainment, January 1, 2024, was Order 12866. This action does not have federalism implications. It will not have substantial well beyond the Serious area attainment C. Paperwork Reduction Act (PRA) date and we received feedback during direct effects on the states, on the the public comment period suggesting This rule does not impose any new relationship between the national that any implementation deadline information collection burden under the government and the states, or on the PRA not already approved by the Office distribution of power and beyond the attainment date would not 49 serve timely attainment. We are of Management and Budget. This responsibilities among the various therefore finalizing July 20, 2021, the action does not contain any information levels of government. collection activities and serves only to Serious Area attainment date, as the G. Executive Order 13175: Consultation make final: (1) Determinations that deadline for implementing RACT and Coordination With Indian Tribal certain Moderate nonattainment areas measures not needed for attainment. Governments The EPA believes this date is reasonable listed in Table 2 attained the 2008 ozone and appropriate when considering the standards by the July 20, 2018, This action has tribal implications. comments received on this issue and the attainment date; (2) approval to grant However, it will neither impose timing of this final action. We also note certain Moderate nonattainment areas substantial direct compliance costs on that because the EPA is finalizing the listed in Table 2 a 1-year attainment federally recognized tribal governments, SIP submission date for RACT measures date extension from the July 20, 2018, nor preempt tribal law. The EPA has not tied to attainment as 18 months attainment date to July 20, 2019; (3) identified a few tribal areas that exist from the effective date of this final determinations that certain Moderate within certain Moderate nonattainment action, this implementation approach nonattainment areas listed in Table 2 areas for which the EPA is making final will provide at least some window of failed to attain the 2008 ozone standards determinations of attainment for the time between the SIP revision by the July 20, 2018, attainment date 2008 ozone NAAQS. The EPA regional submission due date and the deadline where such areas will be reclassified as offices consulted with tribal officials for implementation of RACT measures Serious nonattainment for the 2008 under the EPA policy on Consultation not tied to attainment, which, as we ozone standards by operation of law and Coordination with Indian Tribes noted at proposal, is preferable to direct upon the effective date of the final early in the process of developing this alignment of the SIP submission due reclassification action; and (4) regulation to permit them to have date and implementation deadline, establishment of adjusted due dates for meaningful and timely input into its where possible. SIP revisions, including RACT SIP development. Documentation of the revisions, and RACT implementation consultation is provided in docket items IV. Environmental Justice deadlines. EPA–HQ–OAR–2018–0226–0041 and Considerations D. Regulatory Flexibility Act (RFA) 0043. The CAA requires that states with I certify that this action will not have H. Executive Order 13045: Protection of areas designated as nonattainment a significant economic impact on a Children From Environmental Health submit to the Administrator the substantial number of small entities and Safety Risks appropriate SIP revisions and under the RFA. This action will not implement specified control measures impose any requirements on small The EPA interprets Executive Order by certain dates applicable to the area’s entities. The determinations of 13045 as applying only to those classification. By requiring additional attainment and failure to attain the 2008 regulatory actions that concern planning and implementation ozone standards (and resulting environmental health or safety risks that requirements for the seven reclassifications), and the final approval the EPA has reason to believe may nonattainment areas that the EPA to grant 1-year attainment date disproportionately affect children, per determined failed to attain the 2008 extensions do not in and of themselves the definition of ‘‘covered regulatory ozone NAAQS standards, the part of action’’ in section 2–202 of the this action reclassifying those seven 49 On April 30, 2018, the OMB approved EPA’s Executive Order. This action is not areas from Moderate to Serious will request for renewal of the previously approved subject to Executive Order 13045 protect all those residing, working, information collection request (ICR). The renewed because it does not concern an request expires on April 30, 2021, 3 years after the environmental health risk or safety risk. attending school, or otherwise present approval date (see OMB Control Number 2060–0695 in those areas regardless of minority or and ICR Reference Number 201801–2060–003 for economic status. EPA ICR No. 2347.03). 50 U.S.C. is United States Code.

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I. Executive Order 13211: Actions That such a determination.’’ 51 Because this Authority: 42 U.S.C. 7401 et seq. Significantly Affect Energy Supply, final action makes findings regarding Distribution, or Use nonattainment areas across the country, Subpart F—California interprets the CAA and applies such This action is not subject to Executive ■ 2. Section 52.282 is amended by interpretations to states and Order 13211, because it is not a adding paragraph (k) to read as follows: significant regulatory action under nonattainment areas across the country, Executive Order 12866. and establishes SIP deadlines for newly § 52.282 Control strategy and regulations: reclassified areas in different states in a Ozone. J. National Technology Transfer consistent fashion, the Administrator * * * * * Advancement Act (NTTAA) finds that this action has nationwide (k) Determination of attainment by the This rulemaking does not involve scope and effect. Therefore, in attainment date. Effective September technical standards. accordance with CAA section 307(b)(1), 23, 2019. The EPA has determined that petitions for review of this final action the Mariposa County Moderate K. Executive Order 12898: Federal may be filed only in the United States nonattainment area in California Actions To Address Environmental Court of Appeals for the District of attained the 2008 8-hour ozone National Justice in Minority Populations and Columbia Circuit by October 22, 2019. Ambient Air Quality Standards Low-Income Populations Note, under CAA section 307(b)(2), the (NAAQS) by the applicable attainment The EPA believes that this action does requirements established by this final date of July 20, 2018, based upon not have disproportionately high and rule may not be challenged separately in complete quality-assured and certified adverse human health or environmental any civil or criminal proceedings for data for the calendar years 2015–2017. effects on minority, low-income enforcement. Subpart V—Maryland populations and/or indigenous peoples, List of Subjects as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 40 CFR Part 52 ■ 3. Section 52.1076 is amended by documentation for this decision is Environmental protection, adding paragraph (ff) to read as follows: contained in the section of the preamble Administrative practice and procedure, § 52.1076 Control strategy plans for titled, ‘‘Environmental Justice Air pollution control, Designations and attainment and rate-of-progress: Ozone. Considerations.’’ classifications, Incorporation by * * * * * L. Congressional Review Act (CRA) reference, Intergovernmental relations, (ff) The EPA has determined that the Nitrogen oxides, Ozone, Reporting and Baltimore, Maryland Moderate This rule is exempt from the CRA recordkeeping requirements, Volatile nonattainment area attained the 2008 8- because it is a rule of particular organic compounds. hour ozone National Ambient Air applicability. The rule makes factual Quality Standards by the applicable determinations for specific entities and 40 CFR Part 81 attainment date of July 20, 2018, based does not directly regulate any entities. Environmental protection, upon complete quality-assured and The determinations of attainment and Administrative practice and procedure, certified data for the calendar years failure to attain the 2008 ozone NAAQS Air pollution control, Designations and 2015–2017. (and resulting reclassifications), and the classifications, Intergovernmental approval to grant 1-year attainment date relations, Nitrogen oxides, Ozone, PART 81—DESIGNATION OF AREAS extensions do not in themselves create Reporting and recordkeeping FOR AIR QUALITY PLANNING any new requirements beyond what is requirements, Volatile organic PURPOSES mandated by the CAA. compounds. ■ M. Judicial Review Dated: August 7, 2019. 4. The authority citation for part 81 Andrew R. Wheeler, continues to read as follows: Under section 307(b)(1) of the CAA, petitions for judicial review of final Administrator. Authority: 42 U.S.C. 7401, et seq. actions that are locally and regionally For the reasons stated in the Subpart C—Section 107 Attainment applicable may be filed only in the preamble, parts 52 and 81, title 40, Status Designations United States Court of Appeals for the chapter 1 of the Code of Federal appropriate circuit. However, the statute Regulations are amended as follows: ■ 5. Section 81.305 is amended by also provides that notwithstanding that revising the entries for ‘‘Nevada County PART 52—APPROVAL AND general rule, ‘‘a petition for review of (Western part), CA:’’ and ‘‘San Diego PROMULGATION OF any action . . . may be filed only in the County, CA:’’ in the table entitled IMPLEMENTATION PLANS United States Court of Appeals for the ‘‘California—2008 8-Hour Ozone District of Columbia if such action is ■ 1. The authority citation for part 52 NAAQS (Primary and secondary)’’ to based on a determination of nationwide continues to read as follows: read as follows: scope or effect and if in taking such § 81.305 California. action the Administrator finds and 51 See 42 U.S.C. 7607(b)(1); see also Dalton publishes that such action is based on Trucking v. EPA, 808 F.3d 875 (D.C. Circuit 2015). * * * * *

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CALIFORNIA—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

******* Nevada County (Western part), CA: 2 ...... Nonattainment 9/23/2019 Serious. Nevada County (part): That portion of Nevada County, which lies west of a line, described as follows: Begin- ning at the Nevada-Placer County bound- ary and running north along the western boundaries of Sections 24, 13, 12, 1, Township 17 North, Range 14 East, Mount Diablo Base and Meridian, and Sections 36, 25, 24, 13, 12, Township 18 North, Range 14 East to the Nevada-Sierra County boundary.

******* San Diego County, CA: 2 ...... Nonattainment 9/23/2019 Serious. San Diego County: 2 Barona Group of Capitan Grande Band of Mission Indians of the Barona Reserva- tion 3. Campo Band of Diegueno Mission Indians of the Campo Indian Reservation 3. Capitan Grande Band of Diegueno Mission Indians of California 3. Ewiiaapaayp Band of Kumayaay Indians 3. Iipay Nation of Santa Ysabel 3. Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation 3. Jamul Indian Village of California 3. La Jolla Band of Luiseno Indians 3. La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation 3. Los Coyotes Band of Cahuilla and Cupeno Indians 3. Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation 3. Mesa Grande Band of Diegueno Mission In- dians of the Mesa Grande Reservation 3. Pala Band of Luiseno Mission Indians of the Pala Reservation 3. Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation 3. Rincon Band of Luiseno Mission Indians of the Rincon Reservation 3. San Pasqual Band of Diegueno Mission Indi- ans of California 3. Sycuan Band of the Kumeyaay Nation 3. Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians 3.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted. 3 Includes Indian country of the tribe listed in this table located in the identified area. Information pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish Indian country land status, and is making no determination of Indian country boundaries, in this table.

* * * * * ‘‘Connecticut—2008 8-Hour Ozone § 81.307 Connecticut. ■ 6. Section 81.307 is amended by NAAQS [Primary and secondary]’’ to * * * * * revising the table entitled read as follows:

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CONNECTICUT—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Greater Connecticut, CT: 2 ...... Nonattainment 9/23/2019 Serious. Hartford County. Litchfield County. New London County. Tolland County. Windham County. Mashantucket Pequot Tribe of Connecticut 3. Mohegan Indian Tribe of Connecticut 3. New York-N. New Jersey-Long Island, NY-NJ-CT: 2 ...... Nonattainment 9/23/2019 Serious. Fairfield County. Middlesex County. New Haven County. 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted. 3 Includes Indian country of the tribe listed in this table located in the identified area. Information pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish Indian country land status, and is making no determination of Indian country boundaries, in this table.

* * * * * Naperville, IL–IN–WI:’’ in the table § 81.314 Illinois. entitled ‘‘Illinois—2008 8-Hour Ozone ■ 7. Section 81.314 is amended by * * * * * NAAQS (Primary and secondary)’’ to revising the entry for ‘‘Chicago- read as follows:

ILLINOIS—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Chicago-Naperville, IL–IN–WI: 2 ...... Nonattainment 9/23/2019 Serious. Cook County. DuPage County. Grundy County (part). Aux Sable Township. Goose Lake Township. Kane County. Kendall County (part). Oswego Township. Lake County. McHenry County. Will County.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

* * * * * Naperville, IL–IN–WI:’’ in the table § 81.315 Indiana. entitled ‘‘Indiana—2008 8-Hour Ozone ■ 8. Section 81.315 is amended by * * * * * NAAQS (Primary and secondary)’’ to revising the entry for ‘‘Chicago- read as follows:

INDIANA—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Chicago-Naperville, IL–IN–WI: 2 ...... Nonattainment 9/23/2019 Serious. Lake County. Porter County.

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INDIANA—2008 8-HOUR OZONE NAAQS—Continued [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

* * * * * New Jersey-Long Island, NY-NJ-CT:’’ in § 81.331 New Jersey. the table entitled ‘‘New Jersey—2008 8- ■ 9. Section 81.331 is amended by * * * * * Hour Ozone NAAQS [Primary and revising the entry for ‘‘New York-N. secondary]’’ to read as follows:

NEW JERSEY—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

New York-N. New Jersey-Long Island, NY-NJ-CT: 2 ...... Nonattainment 9/23/2019 Serious. Bergen County. Essex County. Hudson County. Hunterdon County. Middlesex County. Monmouth County. Morris County. Passaic County. Somerset County. Sussex County. Union County. Warren County.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

* * * * * New Jersey-Long Island, NY-NJ-CT:’’ in § 81.333 New York. the table entitled ‘‘New York—2008 8- ■ 10. Section 81.333 is amended by * * * * * Hour Ozone NAAQS (Primary and revising the entry for ‘‘New York-N. secondary)’’ to read as follows:

NEW YORK—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

******* New York-N. New Jersey-Long Island, NY-NJ-CT: 2 ...... Nonattainment 9/23/2019 Serious. Bronx County. Kings County. Nassau County. New York County. Queens County. Richmond County. Rockland County. Suffolk County. Westchester County. Shinnecock Indian Nation 3.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

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3 Includes Indian country of the tribe listed in this table located in the identified area. Information pertaining to areas of Indian country in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country status or any Indian country boundary. EPA lacks the authority to establish Indian country land status, and is making no determination of Indian country boundaries, in this table.

* * * * * Brazoria, TX:’’ in the table entitled § 81.344 Texas. ■ 11. Section 81.344 is amended by ‘‘Texas—2008 8-Hour Ozone NAAQS * * * * * revising the entries for ‘‘Dallas-Fort (Primary and secondary)’’ to read as Worth, TX:’’ and ‘‘Houston-Galveston- follows:

TEXAS—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Dallas-Fort Worth, TX: 2 ...... Nonattainment 9/23/2019 Serious. Collin County. Dallas County. Denton County. Ellis County. Johnson County. Kaufman County. Parker County. Rockwall County. Tarrant County. Wise County. Houston-Galveston-Brazoria, TX: 2 ...... Nonattainment 9/23/2019 Serious. Brazoria County. Chambers County. Fort Bend County. Galveston County. Harris County. Liberty County. Montgomery County. Waller County.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted.

* * * * * Sheboygan County, WI,’’ and ‘‘Shoreline NAAQS (Primary and secondary)’’ to Sheboygan County, WI’’ and adding read as follows: ■ 12. Section 81.350 is amended by footnote 5 in the table entitled revising the entries for ‘‘Chicago- § 81.350 Wisconsin. ‘‘Wisconsin—2008 8-Hour Ozone Naperville, IL–IN–WI:,’’ ‘‘Inland * * * * *

WISCONSIN—2008 8-HOUR OZONE NAAQS [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Chicago-Naperville, IL-IN-WI: 2 ...... Nonattainment 9/23/2019 Serious. Kenosha County (part): The portion of Kenosha County bounded by the Lake Michigan shoreline on the East, the Kenosha County boundary on the North, the Kenosha County boundary on the South, and the I–94 corridor (including the entire corridor) on the West. Inland Sheboygan County, WI 25 ...... 7/15/2019 Nonattainment 12/19/2016 Moderate.

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WISCONSIN—2008 8-HOUR OZONE NAAQS—Continued [Primary and secondary]

Designation Classification Designated area Date 1 Type Date 1 Type

Sheboygan County (part): Exclusive and west of the following roadways going from the northern county boundary to the southern county boundary: Highway 43, Wilson Lima Road, Minderhaud Road, County Road KK/Town Line Road, N 10th Street, County Road A S/Center Avenue, Gibbons Road, Hoftiezer Road, Highway 32, Palmer Road/Smies Road/Palmer Road, Amsterdam Road/County Road RR, Termaat Road. Shoreline Sheboygan County, WI 25 ...... 7/15/2019 Nonattainment 12/19/2016 Moderate. Sheboygan County (part): Inclusive and east of the following roadways going from the northern county boundary to the southern county boundary: Highway 43, Wilson Lima Road, Minderhaud Road, County Road KK/Town Line Road, N 10th Street, County Road A S/Center Avenue, Gibbons Road, Hoftiezer Road, Highway 32, Palmer Road/Smies Road/Palmer Road, Amsterdam Road/County Road RR, Termaat Road.

******* 1 This date is July 20, 2012, unless otherwise noted. 2 Excludes Indian country located in each area, unless otherwise noted. ******* 5 Attainment date is extended to July 20, 2019 for both Inland Sheboygan County, WI, and Shoreline Sheboygan County, WI, nonattainment areas.

* * * * * to separate from their mating telephone: 202–366–3827; facsimile: [FR Doc. 2019–17796 Filed 8–22–19; 8:45 am] component. This final rule also makes 202–493–2990, or Mr. Daniel Koblenz, BILLING CODE 6560–50–P three minor technical corrections to Office of Chief Counsel; telephone: 202– FMVSS No. 305. 366–2992; facsimile: 202–366–3820. DATES: The mailing address of these officials is: DEPARTMENT OF TRANSPORTATION Effective date: This final rule is National Highway Traffic Safety effective August 23, 2019. Administration, 1200 New Jersey National Highway Traffic Safety Compliance date: The compliance Avenue SE, Washington, DC 20590. Administration date for the amendments in this final SUPPLEMENTARY INFORMATION: rule is August 24, 2020. Optional early 49 CFR Part 571 Table of Contents compliance is permitted. [Docket No. NHTSA–2019–0009] Petitions for reconsideration: Petitions I. Introduction II. Alliance Comment to the NPRM RIN 2127–AM10 for reconsideration of this final rule must be received not later than October III. Final Rule IV. Regulatory Notices and Analyses Federal Motor Vehicle Safety 7, 2019. Standards; Electric-Powered Vehicles: ADDRESSES: Petitions for reconsideration I. Introduction Electrolyte Spillage and Electrical of this final rule must refer to the docket On February 28, 2019, NHTSA Shock Protection and notice number set forth above and published a notice of proposed be submitted to the Administrator, AGENCY: National Highway Traffic rulemaking (NPRM) proposing to amend National Highway Traffic Safety Safety Administration (NHTSA), Federal Motor Vehicle Safety Standard Administration, 1200 New Jersey Department of Transportation (DOT). (FMVSS) No. 305, ‘‘Electric-powered Avenue SE, Washington, DC 20590. ACTION: Final rule. vehicles: electrolyte spillage and Note that all petitions received will be electrical shock protection.’’ 84 FR SUMMARY: This final rule clarifies the posted without change to http:// 6758. The NPRM proposed to amend the direct contact protection requirements www.regulations.gov, including any regulatory text of FMVSS No. 305 to for high voltage connectors in Federal personal information provided. explicitly permit high-voltage Motor Vehicle Safety Standard (FMVSS) Privacy Act: Please see the Privacy connectors that provide direct contact No. 305, ‘‘Electric-powered vehicles: Act heading under Rulemaking protection when connected to their electrolyte spillage and electrical shock Analyses and Notices. mating component and that require the protection.’’ It amends the standard to FOR FURTHER INFORMATION CONTACT: You use of a tool to separate from their make clear the allowance of high voltage may contact Ms. Shashi Kuppa, Office mating component. The regulatory text connectors that require the use of a tool of Crashworthiness Standards; that was the subject of the NPRM was

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adopted in a September 27, 2017 final (OMB) under E.O. 12866. The changes consultation with States, local rule (82 FR 44945) that sought to in this final rule largely clarify or governments, or their representatives is harmonize FMVSS No. 305 with Global correct text adopted by a September 27, mandated beyond the rulemaking Technical Regulations (GTRs) No. 13, 2017 final rule and will have no process. The agency has concluded that ‘‘Hydrogen and Fuel Cell Vehicles,’’ and significant effect on the national the final rule does not have sufficient No. 20, ‘‘Electric Vehicle Safety.’’ The economy. This final rule clarifies the federalism implications to warrant purpose of the February 2019 NPRM direct contact protection requirements consultation with State and local was to clarify certain wording of that that apply to high voltage connectors, officials or the preparation of a final rule relating to high-voltage and explicitly permits the use of high federalism summary impact statement. connectors. The agency explained that voltage connectors that cannot be The final rule does not have the proposed changes would not separated from their mating component ‘‘substantial direct effects on the States, negatively affect motor vehicle safety. without the use of tools. on the relationship between the national NHTSA also proposed three minor government and the States, or on the technical corrections to the standard. Executive Order 13771 distribution of power and NHTSA’s reasoning and justification for E.O. 13771, ‘‘Reducing Regulation and responsibilities among the various the proposed changes were fully Controlling Regulatory Costs,’’ directs levels of government.’’ explained in the NPRM. that, unless prohibited by law, NHTSA rules can have preemptive NHTSA provided an abbreviated 15- whenever an executive department or effect in two ways. First, the National day comment period for the NPRM agency publicly proposes for notice and Traffic and Motor Vehicle Safety Act because the proposed changes were comment or otherwise promulgates a contains an express preemption merely corrective and clarifying in new regulation, it shall identify at least provision, stating that when a motor nature, and because the changes would two existing regulations to be repealed. vehicle safety standard is in effect under provide manufacturers with additional In addition, any new incremental costs this chapter, a State or a political flexibility to meet the requirements of associated with new regulations shall, to subdivision of a State may prescribe or NHTSA’s September 27, 2017 final rule the extent permitted by law, be offset by continue in effect a standard applicable amending FMVSS No. 305. the elimination of existing costs. Per to the same aspect of performance of a motor vehicle or motor vehicle II. Alliance Comment to the NPRM OMB Memorandum M–17–21, only those rules deemed significant under equipment only if the standard is NHTSA received just one comment on section 3(f) of E.O. 12866 are considered identical to the standard prescribed the NPRM, which was submitted by the E.O. 13771 regulatory actions. This final under this chapter. 49 U.S.C. Alliance of Automobile Manufacturers rule is not significant under E.O. 12866, 30103(b)(1). It is this statutory command (Alliance) in support of the proposed and is therefore not considered an E.O. that preempts any non-identical State 1 change. The Alliance stated that it 13771 regulatory action. legislative and administrative law supported the proposed rule because the addressing the same aspect of rule would clarify the direct contact Regulatory Flexibility Act performance. protection requirements that apply to NHTSA has considered the effects of The express preemption provision high voltage connectors, would this final rule under the Regulatory described above is subject to a savings explicitly permit the use of high voltage Flexibility Act (5 U.S.C. 601 et seq., as clause under which ‘‘[c]ompliance with connectors that cannot be separated amended by the Small Business a motor vehicle safety standard from their mating component without Regulatory Enforcement Fairness Act prescribed under this chapter does not the use of tools, and would harmonize (SBREFA) of 1996). I certify that this exempt a person from liability at FMVSS No. 305 with GTRs No. 13 and final rule will not have a significant common law.’’ 49 U.S.C. 30103(e). No. 20.2 economic impact on a substantial Pursuant to this provision, State common law tort causes of action III. Final Rule number of small entities. Any small manufacturers that might be affected by against motor vehicle manufacturers After consideration of the comment this final rule are already subject to the that might otherwise be preempted by submitted by the Alliance and all other requirements of FMVSS No. 305. This the express preemption provision are pertinent matters, NHTSA adopts the final rule merely clarifies or corrects generally preserved. However, the amendments proposed in the NPRM for text adopted by the September 27, 2017 Supreme Court has recognized the the reasons stated in the NPRM. final rule. This rulemaking action does possibility, in some instances, of IV. Regulatory Notices and Analyses not impose any additional restrictions implied preemption of State common that will affect small entities, and in law tort causes of action by virtue of Executive Order 12866 and DOT Order fact, will give greater design flexibility NHTSA’s rules—even if not expressly 2100.6 to manufacturers of electric vehicles. preempted. We have considered the potential This second way that NHTSA rules National Environmental Policy Act impact of this final rule under Executive can preempt is dependent upon the Order (E.O.) 12866, and DOT Order NHTSA has analyzed this rulemaking existence of an actual conflict between 2100.6 and have determined that it is action for the purposes of the National an FMVSS and the higher standard that nonsignificant. This rulemaking Environmental Policy Act. The agency would effectively be imposed on motor document was not reviewed by the has determined that implementation of vehicle manufacturers if someone Office of Management and Budget this action will not have any significant obtained a State common law tort impact on the quality of the human judgment against the manufacturer— 1 According to its website, the Alliance is an environment. notwithstanding the manufacturer’s advocacy group that represents automakers who compliance with the NHTSA standard. build 70% of all cars and light trucks sold in the Executive Order 13132 (Federalism) Because most NHTSA standards U.S. (see https://autoalliance.org/). NHTSA has examined today’s final established by an FMVSS are minimum 2 The Alliance further requested that NHTSA host a public compliance workshop to assist industry rule pursuant to Executive Order 13132 standards, a State common law tort stakeholders with understanding and complying (64 FR 43255; Aug. 10, 1999) and cause of action that seeks to impose a with the September 27, 2017 final rule. concluded that no additional higher standard on motor vehicle

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manufacturers will generally not be Privacy Act the use of high voltage connectors that preempted. However, if and when such Please note that anyone can search the cannot be separated from their mating a conflict does exist—for example, when electronic form of all documents component without the use of tools. We the standard at issue is both a minimum received into any of our dockets by the believe that the amendments to FMVSS and a maximum standard—the State name of the individual submitting the No. 305 would promote harmonization common law tort cause of action is document (or signing the document, if of our countries’ regulatory approaches impliedly preempted. See Geier v. submitted on behalf of an association, on electric vehicles and HFCVs. American Honda Motor Co., 529 U.S. business, labor union, etc.). You may Unfunded Mandates Reform Act 861 (2000). review DOT’s complete Privacy Act The Unfunded Mandates Reform Act Pursuant to E.O. 13132, NHTSA has Statement in the Federal Register of 1995 requires agencies to prepare a considered whether this final rule published on April 11, 2000 (65 FR written assessment of the costs, benefits, preempts State common law causes of 19477–78), or online at http:// and other effects of proposed or final action. The agency’s ability to announce www.dot.gov/privacy.html. its conclusion regarding the preemptive rules that include a Federal mandate effect of one of its rules reduces the Paperwork Reduction Act likely to result in the expenditure by likelihood that preemption will be an Under the Paperwork Reduction Act State, local, or tribal governments, in the issue in any subsequent tort litigation. of 1995 (PRA), a person is not required aggregate, or by the private sector, of To this end, the agency has examined to respond to a collection of information more than $100 million annually the nature (e.g., the language and by a Federal agency unless the (adjusted for inflation with base year of structure of the regulatory text) and collection displays a valid OMB control 1995). We note that as this final rule objectives of today’s final rule and finds number. There are no information only makes minor adjustments and that this rule, like many NHTSA rules, collection requirements associated with clarifications to FMVSS No. 305, it will prescribes only a minimum safety this final rule. not result in expenditures by any of the standard. Accordingly, NHTSA does not aforementioned entities of over $100 intend that this final rule preempt state National Technology Transfer and million annually. tort law that effectively imposes a Advancement Act higher standard on motor vehicle Executive Order 13609 (Promoting Under the National Technology Regulatory Cooperation) manufacturers than that established by Transfer and Advancement Act of 1995 today’s final rule. Establishment of a (NTTAA) (Pub. L. 104–113), ‘‘all Federal Executive Order 13609 states that the higher standard by means of State tort agencies and departments shall use regulatory approaches taken by foreign law would not conflict with the technical standards that are developed governments may differ from those minimum standard established by this or adopted by voluntary consensus taken by U.S. regulatory agencies to document. Without any conflict, there standards bodies, using such technical address similar issues. In some cases, could not be any implied preemption of standards as a means to carry out policy the differences between the regulatory a State common law tort cause of action. objectives or activities determined by approaches of U.S. agencies and those of their foreign counterparts might not be Executive Order 12988 (Civil Justice the agencies and departments.’’ necessary and might impair the ability Reform) Voluntary consensus standards are technical standards (e.g., materials of American businesses to export and With respect to the review of the specifications, test methods, sampling compete internationally. In meeting promulgation of a new regulation, procedures, and business practices) that shared challenges involving health, section 3(b) of Executive Order 12988, are developed or adopted by voluntary safety, labor, security, environmental, ‘‘Civil Justice Reform’’ (61 FR 4729; Feb. consensus standards bodies, such as the and other issues, international 7, 1996), requires that Executive Society of Automotive Engineers (SAE). regulatory cooperation can identify agencies make every reasonable effort to The NTTAA directs us to provide approaches that are at least as protective ensure that the regulation: (1) Clearly Congress, through OMB, explanations as those that are or would be adopted in specifies the preemptive effect; (2) when we decide not to use available and the absence of such cooperation. clearly specifies the effect on existing applicable voluntary consensus International regulatory cooperation can Federal law or regulation; (3) provides standards. also reduce, eliminate, or prevent a clear legal standard for affected Pursuant to the above requirements, unnecessary differences in regulatory conduct, while promoting simplification the agency conducted a review of requirements. and burden reduction; (4) clearly voluntary consensus standards to This final rule harmonizes FMVSS specifies the retroactive effect, if any; (5) determine if any were applicable to this No. 305 with provisions that are in specifies whether administrative final rule. NHTSA searched for but did GTRs No. 13 and No. 20. Specifically, proceedings are to be required before not find voluntary consensus standards the primary clarification made by this parties file suit in court; (6) adequately directly applicable to the amendments document—that the use of connectors defines key terms; and (7) addresses in this final rule. that cannot be separated from their other important issues affecting clarity However, consistent with the NTTAA, mating component without the use of and general draftsmanship under any this final rule is aligned with tools is permissible under FMVSS No. guidelines issued by the Attorney regulations developed globally on 305—brings FMVSS No. 305 into General. This document is consistent electric vehicle safety, namely GTR No. alignment with GTRs No. 13 and No. 20 with that requirement. 13 and GTR No. 20.3 The GTRs permit requirements relating to high voltage Pursuant to this Order, NHTSA notes connectors, and so will further the goals as follows. The issue of preemption is 3 The NTTAA seeks to support efforts by the of E.O. 13609. discussed above. NHTSA notes further Federal government to ensure that agencies work that there is no requirement that with their regulatory counterparts in other countries Regulation Identifier Number individuals submit a petition for to address common safety issues. Circular No. A– The Department of Transportation 119, ‘‘Federal Participation in the Development and reconsideration or pursue other Use of Voluntary Consensus Standards and in assigns a regulation identifier number administrative proceedings before they Conformity Assessment Activities,’’ January 27, (RIN) to each regulatory action listed in may file suit in court. 2016, p. 15. the Unified Agenda of Federal

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Regulations. The Regulatory Information S4. Definitions. requirements of S5.4.4 for the on-board Service Center publishes the Unified * * * * * electrical isolation monitoring system Agenda in April and October of each High voltage live part means a live shall be tested using the following year. You may use the RIN contained in part of a high voltage source. procedure. the heading at the beginning of this * * * * * * * * * * document to find this action in the S5.4.1.5 Connectors. All connectors S9.2 * * * Unified Agenda. shall provide direct contact protection List of Subjects in 49 CFR Part 571 by: (a) Test method using a resistance (a) Meeting the requirements specified tester. The resistance tester is connected Imports, Motor vehicles, Motor in S5.4.1.4 when the connector is to the measuring points (the electrical vehicle safety. connected to its corresponding mating chassis and any exposed conductive In consideration of the foregoing, component; and, part of electrical protection barriers or NHTSA amends 49 CFR part 571 as (b) If a connector can be separated any two simultaneously reachable follows: from its mating component without the exposed conductive parts of electrical use of a tool, meeting at least one of the PART 571—FEDERAL MOTOR protection barriers that are less than 2.5 following conditions from (b)(1), (2), or VEHICLE SAFETY STANDARDS meters from each other), and the (3) of this section: resistance is measured using a ■ 1. The authority citation for part 571 (1) The connector meets the resistance tester that can supply current continues to read as follows: requirements of S5.4.1.4 when separated levels of at least 0.2 Amperes with a from its mating component; Authority: 49 U.S.C. 322, 30111, 30115, (2) The voltage of the live parts resolution of 0.01 ohms or less. The 30117, and 30166; delegation of authority at resistance between two exposed 49 CFR 1.95 and 501.8. becomes less than or equal to 60 VDC or 30 VAC within one second after the conductive parts of electrical protection ■ 2. Amend § 571.305 by connector is separated from its mating barriers that are less than 2.5 meters ■ a. Adding (in alphabetical order) a component; or, from each other may be calculated using definition for ‘‘High voltage live part’’ to (3) The connector requires at least two the separately measured resistances of S4; distinct actions to separate from its the relevant parts of the electric path. ■ b. Revising S5.4.1.5; mating component and there are other ■ c. Revising the introductory text of S8; * * * * * components that must be removed in and, Issued in Washington, DC, under authority order to separate the connector from its ■ d. Revising S9.2(a). delegated in 49 CFR 1.95 and 501.5. mating component and these other The addition and revisions read as components cannot be removed without Heidi Renate King, follows: the use of tools. Deputy Administrator. § 571.305 Standard No. 305; Electric- * * * * * [FR Doc. 2019–17814 Filed 8–22–19; 8:45 am] powered vehicles; electrolyte spillage and S8. Test procedure for on-board BILLING CODE 4910–59–P electrical shock protection. electrical isolation monitoring system. * * * * * Prior to any impact test, the

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Proposed Rules Federal Register Vol. 84, No. 164

Friday, August 23, 2019

This section of the FEDERAL REGISTER Service, 1111 Constitution Avenue NW, § 1.61–21(e)(1)(iii). The fleet-average contains notices to the public of the proposed Washington, DC 20224. valuation rule may be used only to issuance of rules and regulations. The FOR FURTHER INFORMATION CONTACT: value the personal use of vehicles purpose of these notices is to give interested Concerning the proposed regulations, having values no greater than $16,500. persons an opportunity to participate in the § 1.61–21(d)(5)(v)(D). (The fleet-average rule making prior to the adoption of the final Gabriel J. Minc at (202) 317–4774; rules. concerning submissions of comments or valuation rule uses the term to request a public hearing, Regina L. ‘‘automobile’’ rather than ‘‘vehicle.’’ For Johnson at (202) 317–6901 (not toll-free convenience, this preamble uses the DEPARTMENT OF THE TREASURY numbers). term ‘‘vehicle’’ except in specific SUPPLEMENTARY INFORMATION: discussions of the fleet-average Internal Revenue Service valuation rule or the section 280F Background depreciation limitations.) Under the 26 CFR Part 1 If an employer provides an employee final regulations, each of these with a vehicle that is available to the maximum values is adjusted annually [REG–101378–19] employee for personal use, the value of pursuant to section 280F(d)(7). RIN 1545–BP14 the personal use must generally be included in the employee’s income The Fleet-Average Valuation Rule Determination of the Maximum Value under section 61 of the Internal Revenue The fleet-average valuation rule is an of a Vehicle for Use With the Fleet- Code (the Code). In addition, benefits optional component of a special Average and Vehicle Cents-per-Mile paid as remuneration for employment, valuation rule called the automobile Valuation Rules including the personal use of employer- lease valuation rule set forth in § 1.61– provided vehicles, generally are also AGENCY: Internal Revenue Service (IRS), 21(d). Under the automobile lease wages for purposes of the Federal valuation rule, the value of the personal Treasury. Insurance Contributions Act (FICA), the ACTION: Notice of proposed rulemaking. use of an employer-provided automobile Federal Unemployment Tax Act (FUTA) available to an employee for an entire and the Collection of Income Tax at SUMMARY: This document sets forth year is the portion of the annual lease Source on Wages (federal income tax proposed regulations regarding special value determined under the regulations withholding). Sections 3121(a), 3306(b), valuation rules for employers and (Annual Lease Value) relating to the and 3401(a). employees to use in determining the availability of the automobile for The amount that must be included in amount to include in an employee’s personal use. Furthermore, provided the the employee’s income and wages for gross income for personal use of an FMV of the automobile does not exceed the personal use of an employer- employer-provided vehicle. The the maximum value permitted under provided vehicle generally is proposed regulations reflect changes § 1.61–21(d)(5)(v), an employer with a determined by reference to the vehicle’s made by the Tax Cuts and Jobs Act, fleet of 20 or more automobiles may use fair market value (FMV). However, the Public Law 115–97 (the Act). a fleet-average value for purposes of regulations under section 61 provide DATES: Comments and requests for a special valuation rules for employer- calculating the Annual Lease Value of public hearing must be received by provided vehicles. If an employer any automobile in the fleet. October 22, 2019. chooses to use a special valuation rule, The fleet-average value is the average ADDRESSES: Submit electronic the special value is treated as the FMV of the fair market values of all the submissions via the Federal of the benefit for income tax and automobiles in the fleet. However, eRulemaking Portal at employment tax purposes. § 1.61– § 1.61–21(d)(5)(v)(D) provides that the www.regulations.gov (indicate IRS and 21(b)(4). Two such special valuation value of an employee’s personal use of REG–101378–19) by following the rules, the fleet-average valuation rule an automobile may not be determined online instructions for submitting and the vehicle cents-per-mile valuation under the fleet-average valuation rule comments. Once submitted to the rule, are set forth in § 1.61–21(d)(5)(v) for a calendar year if the FMV of the Federal eRulemaking Portal, comments and § 1.61–21(e), respectively. These automobile on the first date the cannot be edited or withdrawn. The two special valuation rules are subject automobile is made available to the Department of the Treasury (Treasury to limitations, including that they may employee exceeds the base value of Department) and the IRS will publish be used only in connection with $16,500, as adjusted annually pursuant for public availability any comment vehicles having values that do not to section 280F(d)(7). Section 1.61– received to its public docket, whether exceed a maximum amount set forth in 21(d)(5)(v)(D) provides that the first submitted electronically or in hard the regulations. such adjustment shall be for calendar copy. Send hard copy submissions to: Under the current § 1.61–21 year 1989, subject to minor CC:PA:LPD:PR (REG–101378–19), Room regulations (the final regulations), the modifications to the section 280F(d)(7) 5203, Internal Revenue Service, P.O. vehicle cents-per-mile valuation rule formula specified in the regulations. In Box 7604, Ben Franklin Station, may be used only to value the personal other words, under the final regulations, Washington, DC 20044. Submissions use of a vehicle having a value no the maximum value for use of the fleet- may be hand-delivered Monday through greater than $12,800 (the sum of the average rule is the base value of Friday between the hours of 8 a.m. and maximum recovery deductions $16,500, as adjusted annually under 4 p.m. to CC:PA:LPD:PR (REG–101378– allowable under section 280F(a)(2) for section 280F(d)(7) every year since 19), Courier’s Desk, Internal Revenue the recovery period of the vehicle). 1989.

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Prior to enactment of the Act, the Section 1.61–21(e)(1)(iii)(A) provides modified by section 13202(a)(1) of the automobile price inflation adjustment of that the value of the personal use may Act, imposes dollar limitations on the section 280F(d)(7)(B) was calculated not be determined under the vehicle depreciation deduction for the year the using the ‘‘new car’’ component of the cents-per-mile valuation rule for a taxpayer places the passenger Consumer Price Index (CPI) calendar year if the fair market value of automobile in service and for each ‘‘automobile component.’’ Beginning in the vehicle on the first date the vehicle succeeding year. The amendments made 2005, the IRS began to calculate the is made available to the employee by the Act substantially increase the price inflation adjustment for trucks and exceeds the sum of the maximum maximum annual dollar limitations on vans separately from cars using the recovery deductions allowable under the depreciation deductions for ‘‘new truck’’ component of the CPI, and section 280F(a) for a five-year period for passenger automobiles. The new dollar continued using the ‘‘new car’’ an automobile first placed in service limitations are based on the component of the CPI for automobiles during that calendar year (whether or depreciation, over a five-year recovery other than trucks and vans. Rev. Proc. not the automobile is actually placed in period, of a passenger automobile with 2005–48, 2005–32 I.R.B. 271. For 2017, service during that year), as adjusted by a cost of $50,000 (formerly $12,800). the year prior to the enactment of the section 280F(d)(7). The final regulations (2) Section 11002(d)(8) of the Act Act, the maximum value for use of this also provide that, under this rule, with amended section 280F(d)(7)(B) effective rule was $21,100 for a passenger respect to a vehicle placed in service in for tax years beginning after December automobile and $23,300 for a truck or or after 1989, the limitation on value is 31, 2017. Pursuant to these van. See Notice 2017–03, 2017–2 I.R.B. $12,800, as adjusted under section amendments, the price inflation amount 368. 280F(d)(7). In other words, under the for automobiles (including trucks and Section 1.61–21(d)(5)(v)(B) provides final regulations, the maximum value of vans) is calculated using both the CPI that the fleet-average valuation rule may a vehicle for use of the vehicle cents- automobile component and the Chained be used by an employer as of January 1 per-mile valuation rule is the base value Consumer Price Index for All Urban Consumers (C–CPI–U) automobile of any calendar year following the of $12,800, as adjusted annually under component. calendar year in which the employer section 280F(d)(7) since 1989. As with acquires a sufficient number of the fleet-average valuation rule, a. Notice 2019–08—The Maximum automobiles to total a fleet of 20 or beginning in 2005, the IRS calculated Value for 2018 more, each one satisfying the maximum the price inflation adjustment for trucks and vans separately from cars. See Rev. To implement the changes described value requirement of § 1.61– above, Notice 2019–08, 2019–3 I.R.B. 21(d)(5)(v)(D). The Annual Lease Value Proc. 2005–48. For 2017, the year prior to the enactment of the Act, the 354, provides interim guidance for 2018 calculated for automobiles in the fleet, maximum value for use of the vehicle on new procedures for calculating the based on the fleet-average value, must cents-per-mile valuation rule was price inflation adjustments to the remain in effect for the period that $15,900 for a passenger automobile and maximum vehicle values for use with begins with the first January 1 the fleet- $17,800 for a truck or van. See Notice the special valuation rules under § 1.61– average valuation rule is applied by the 2017–03. 21(d) and (e) using section 280F(d)(7), employer to the automobiles in the fleet Section 1.61–21(e)(5)(i) states that an as modified by sections 11002 and and ends on December 31 of the employer must adopt the vehicle cents- 13202 of the Act. Notice 2019–08 states subsequent calendar year. The Annual per-mile valuation rule for a vehicle to that the Treasury Department and the Lease Value for each subsequent two- take effect by the first day on which the IRS anticipated that further guidance year period is calculated by determining vehicle is used by an employee of the would be issued in the form of proposed the fleet average value of the employer for personal use (or, if another regulations and expected that the automobiles in the fleet as of the first special valuation rule called the regulations would be consistent with January 1 of such period. An employer commuting valuation rule of § 1.61– the rules set forth in Notice 2019–08. may cease using the fleet-average 21(f) is used when the vehicle is first Notice 2019–08 provides that, valuation rule as of any January 1. used by an employee of the employer consistent with the substantial increase 2. The Vehicle Cents-per-Mile Valuation for personal use, the first day on which in the dollar limitations on depreciation Rule the commuting valuation rule is not deductions under section 280F(a), as used). Section 1.61–21(e)(5)(ii) also modified by section 13202(a)(1) of the Another special valuation rule is the provides, in part, that once the vehicle Act, the Treasury Department and the vehicle cents-per-mile rule in § 1.61– cents-per-mile valuation rule has been IRS intend to amend § 1.61–21(d) and 21(e). Under § 1.61–21(e), if an adopted for a vehicle by an employer, (e) to incorporate a higher base value of employer provides an employee with the rule must be used by the employer $50,000 as the maximum value for use the use of a vehicle that the employer for all subsequent years in which the of the vehicle cents-per-mile and fleet- reasonably expects will be regularly vehicle qualifies for use of the rule, average valuation rules effective for the used in the employer’s trade or business except that the employer may, for any 2018 calendar year. Notice 2019–08 throughout the calendar year (or such year during which use of the vehicle further states that the Treasury shorter period as the vehicle may be qualifies for the commuting valuation Department and the IRS intend that the owned or leased by the employer), or rule of § 1.61–21(f), use the commuting regulations would be modified to that satisfies the requirements of § 1.61– valuation rule with respect to the provide that this $50,000 base value will 21(e)(1)(ii) (i.e., the vehicle is actually vehicle. be adjusted annually using section driven at least 10,000 miles in the year 280F(d)(7) for 2019 and subsequent and use of the vehicle during the year 3. Tax Cuts and Jobs Act Changes and years. Accordingly, Notice 2019–08 is primarily by employees), the value of the Maximum Vehicle Values for 2018 provides that, for 2018, the maximum the personal use may be determined and 2019 value for use of the vehicle cents-per- based on the applicable standard The Act made the following mile and fleet-average valuation rules is mileage rate multiplied by the total amendments to the Code: $50,000. number of miles the vehicle is driven by (1) For owners of passenger Finally, for 2018 and 2019, Notice the employee for personal purposes. automobiles, section 280F(a), as 2019–08 provides that the Treasury

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Department and the IRS will not publish vehicle cents-per-mile valuation rules the commuting valuation rule was not separate maximum values for trucks and will be published in the annual notice used because the vehicle had a fair vans for use with the fleet-average and providing the standard mileage rates for market value in excess of the inflation- vehicle cents-per-mile valuation rules. use of an automobile for business, adjusted maximum permitted under As noted above, the Act amended charitable, medical, and moving § 1.61–21(e)(1)(iii) as published by the section 280F(d)(7)(B) to make inflation expense purposes and the maximum IRS in a notice or revenue procedure adjustments based on the CPI and C– standard automobile cost that may be applicable to the year the commuting CPI–U automobile component. The C– used in computing the allowance under valuation rule was first not used. Under CPI–U automobile component does not a FAVR plan. the transition rule, the employer may currently have separate components for Notice 2019–34 also provides that the adopt the vehicle cents-per-mile new cars and new trucks. Accordingly, Treasury Department and the IRS intend valuation rule for the 2018 or 2019 due to the lack of data, the Treasury to revise § 1.61–21(d) to include a taxable year based on the maximum fair Department and the IRS will publish transition rule for any employer that did market value of the vehicle for purposes only one maximum value of a vehicle not qualify to use the fleet-average of the vehicle cents-per-mile valuation for use with the vehicle cents-per-mile valuation rule prior to January 1, 2018 rule set forth in Notice 2019–08 or and fleet-average valuation rules because the inflation-adjusted Notice 2019–34, respectively. beginning in 2019. maximum value requirement of § 1.61– With respect to the transition rules 21(d)(5)(v)(D), as published by the IRS described above, Notice 2019–34 adds b. Notice 2019–34—The Maximum in a notice or revenue procedure Vehicle Value for 2019 that, consistent with § 1.61–21(e)(5), an applicable to the year the automobile employer that adopts the vehicle cents- Notice 2019–34, 2019–22 I.R.B. 1257, was first made available to any per-mile valuation rule must continue to provides that the inflation-adjusted employee of the employer, was not met. use the rule for all subsequent years in maximum value of an employer- In such a case, under the transition rule, which the vehicle qualifies for use of provided vehicle (including cars, vans the employer may adopt the fleet- the rule, except that the employer may, and trucks) first made available to average valuation rule for 2018 or 2019, for any year during which use of the employees for personal use in calendar provided the requirements of § 1.61– vehicle qualifies for the commuting year 2019 for which the vehicle cents- 21(d)(5)(v) are met for that year using valuation rule of § 1.61–21(f), use the per-mile valuation rule provided under the maximum values set forth in Notice commuting valuation rule with respect § 1.61–21(e), or the fleet-average 2019–08 ($50,000) or Notice 2019–34 to the vehicle. valuation rule provided under § 1.61– ($50,400), respectively. 21(d), may be applicable is $50,400. In addition, Notice 2019–34 states Explanation of Provisions Notice 2019–34 also provides that the Treasury Department and the information about the manner in which IRS intend to revise § 1.61–21(e) to These proposed regulations update the Treasury Department and the IRS provide a transition rule for vehicles the fleet-average and vehicle cents-per- intend to publish this maximum vehicle first made available to employees for mile valuation rules described in § 1.61– value in the future. personal use before calendar year 2018, 21(d) and (e), respectively, to align the As noted in Notice 2019–34, Rev. if the employer did not qualify under limitations on the maximum vehicle fair Proc. 2010–51, 2010–51 I.R.B. 883, § 1.61–21(e)(5) to adopt the vehicle market values for use of these special provides rules for using optional cents-per-mile valuation rule for the valuation rules with the changes made standard mileage rates in computing the vehicle on the first day on which the by the Act to the depreciation deductible costs of operating an vehicle was used by the employee for limitations in section 280F. Specifically, automobile for business, charitable, personal use because the fair market consistent with the substantial increase medical, or moving expense purposes. value of the vehicle exceeded the in the dollar limitations on depreciation Section 2.12(1) of Rev. Proc. 2010–51 inflation-adjusted limitation of § 1.61– deductions under section 280F(a), these provides that the IRS publishes both the 21(e)(1)(iii) as published by the IRS in proposed regulations increase, effective standard mileage rates for the use of an a notice or revenue procedure for the 2018 calendar year, the automobile for business, charitable, applicable to the year the vehicle was maximum base fair market value of a medical, and moving expense purposes, first used by the employee for personal vehicle for use of the fleet-average or and the maximum standard automobile use. In such a case, under the transition vehicle cents-per-mile valuation rule to cost that may be used in computing the rule, the employer may first adopt the $50,000. As previously, the maximum allowance under a fixed and variable vehicle cents-per-mile valuation rule for fair market value of a vehicle for rate (FAVR) plan, in a separate annual the 2018 or 2019 taxable year based on purposes of the fleet-average and notice. See, e.g., Notice 2019–02, 2019– the maximum fair market value of a vehicle cents-per-mile valuation rule is 02 I.R.B. 281. vehicle for purposes of the vehicle adjusted annually under section Notice 2019–34 indicates that, in cents-per-mile valuation rule set forth in 280F(d)(7). This annual adjustment will amending § 1.61–21(d) and (e) to Notice 2019–08 ($50,000) or Notice be calculated in accordance with section incorporate a higher base value of 2019–34 ($50,400), respectively. 280F(d)(7) as amended by the Act. $50,000 as the maximum value for use Similarly, Notice 2019–34 also Consistent with Notice 2019–34, the with the vehicle cents-per-mile and the provides that the Treasury Department Treasury Department and the IRS expect fleet-average valuation rules, the IRS and the IRS intend to amend § 1.61– that the inflation-adjusted maximum and Treasury Department expected that 21(e) to provide a transition rule for a fair market value for a vehicle for the maximum value for use of those vehicle first placed in service before purposes of the fleet-average and rules for 2019 and subsequent years calendar year 2018 if the commuting vehicle cents-per-mile valuation rules would be the same as the maximum valuation rule of § 1.61–21(f) was used will be included in the annual notice standard automobile cost that may be when the vehicle was first used by an published by the IRS providing the used in computing the allowance under employee of the employer for personal standard mileage rates for the use of an a FAVR plan. Accordingly, Notice use, and the employer did not qualify to automobile for business, charitable, 2019–34 provides that the maximum switch to the vehicle cents-per-mile medical, and moving expense purposes value for use with the fleet-average and valuation rule on the first day on which and the maximum standard automobile

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cost for purposes of an allowance under 1, 2019, respectively. However, proposed regulations, increase the a FAVR plan. consistent with § 1.61–21(e)(5), an number of employers and employees Furthermore, consistent with Notice employer that adopts the vehicle cents- that may take advantage of the special 2019–34, the following transition rules per-mile valuation rule must continue to valuation rules, without increasing costs are included in these proposed use the rule for all subsequent years in to the employer. regulations: which the vehicle qualifies for use of Notwithstanding this certification that (1) With respect to the fleet-average the rule, except that the employer may, the proposed regulations would not valuation rule, if an employer did not for any year during which use of the have a significant economic impact on qualify to use the fleet-average valuation vehicle qualifies for the commuting a substantial number of small entities, rule prior to January 1, 2018 with valuation rule of § 1.61–21(f), use the the Treasury Department and the IRS respect to an automobile because the commuting valuation rule with respect fair market value of the automobile invite comments on the impacts these to the vehicle. proposed regulations may have on small exceeded the inflation-adjusted Until amendments to the final entities. Pursuant to section 7805(f), maximum value requirement of § 1.61– regulations are published under Treas. these proposed regulations will be 21(d)(5)(v)(D), as published by the IRS Reg. § 1.61–21(d) and (e) in the Federal submitted to the Chief Counsel for in a notice or revenue procedure Register, taxpayers may rely on the Advocacy of the Small Business applicable to the year the automobile guidance provided in these proposed was first made available to any regulations. Administration for comment on its employee of the employer, the employer impact on small business. Special Analyses may adopt the fleet-average valuation Comments and Requests for Public rule for 2018 or 2019, provided the fair These proposed regulations are not Hearing market value of the automobile does not subject to review under section 6(b) of exceed $50,000 on January 1, 2018, or Executive Order 12866 pursuant to the The Treasury Department and the IRS $50,400 on January 1, 2019, Memorandum of Agreement (April 11, request comments on all aspects of the respectively. 2018) between the Department of the proposed rules. (2) With respect to the vehicle cents- Treasury and the Office of Management Before these proposed regulations are per-mile valuation rule, for a vehicle and Budget regarding review of tax adopted as final regulations, first made available to any employee of regulations. consideration will be given to any It is hereby certified that these the employer for personal use before comments that are submitted timely to proposed regulations will not have a calendar year 2018, if an employer did the IRS as prescribed in this preamble significant economic impact on a not qualify under § 1.61–21(e)(5) to under the ADDRESSES heading. adopt the vehicle cents-per-mile substantial number of small entities valuation rule on the first day on which pursuant to the Regulatory Flexibility All comments are available at https:// the vehicle was used by the employee Act (5 U.S.C. chapter 6). This www.regulations.gov or upon request. If for personal use because the fair market certification is based on the fact that the a public hearing is scheduled, notice of value of the vehicle exceeded the proposed regulations would update the date, time, and place of the public inflation-adjusted limitation of § 1.61– existing regulations to comport with the hearing will be published in the Federal 21(e)(1)(iii), as published by the IRS in statutory changes to section 280F made Register. a notice or revenue procedure by the Act. Although the proposed Drafting Information applicable to the year the vehicle was regulations might affect a substantial first used by the employee for personal number of small entities, the economic The principal author of these use, the employer may first adopt the impact of the proposed regulations is regulations is Gabriel Minc of the Office vehicle cents-per-mile valuation rule for not expected to be significant. of the Associate Chief Counsel the 2018 or 2019 taxable year with Since the current vehicle valuation (Employee Benefits, Exempt respect to the vehicle, provided the fair rules in the regulations are tied to Organizations, and Employment Tax). market value of the vehicle does not inflation adjustments under section However, other personnel from the IRS exceed $50,000 on January 1, 2018, or 280F, the statutory changes to section and the Treasury Department $50,400 on January 1, 2019, 280F necessitate modifications to the participated in their development. respectively. Similarly, if the procedures for calculating annual commuting valuation rule of § 1.61– inflation adjustments to the maximum Statement of Availability fair market value of a vehicle permitted 21(f) was utilized when the vehicle was The IRS Notices and Revenue for use with the fleet-average and first used by an employee of the Procedures cited in this preamble are vehicle cents-per-mile special valuation employer for personal use, and the published in the Internal Revenue rules. These proposed revised special employer did not qualify to switch to Bulletin (or Cumulative Bulletin) and the vehicle cents-per-mile valuation rule valuation rules are consistent with the are available from the Superintendent of on the first day on which the base values and methodology used for Documents, U.S. Government commuting valuation rule was not used section 280F purposes and simplify the Publishing Office, Washington, DC because the vehicle had a fair market determination of the amount employers 20402, or by visiting the IRS website at value in excess of the inflation-adjusted must include in employees’ income and http://www.irs.gov. limitation of § 1.61–21(e)(1)(iii), as wages for income and employment tax published by the IRS in a notice or purposes for the personal use of List of Subjects in 26 CFR Part 1 revenue procedure applicable to the employer-provided vehicles. The year the commuting valuation rule was modifications that would be made by Income taxes, Reporting and first not used, the employer may adopt these proposed regulations to the recordkeeping requirements. the vehicle cents-per-mile valuation rule maximum fair market value of a vehicle Proposed Amendments to the for the 2018 or 2019 taxable year, permitted for use with the fleet-average Regulations provided the fair market value of the and vehicle cents-per-mile special vehicle does not exceed $50,000 on valuation rules, and the transition rules Accordingly, 26 CFR part 1 is January 1, 2018, or $50,400 on January provided in connection with these proposed to be amended as follows:

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PART 1—INCOME TAXES sentence of this paragraph (d)(5)(v)(H), use, and the employer did not qualify to any taxpayer may choose to apply switch to the vehicle cents-per-mile ■ Paragraph 1. The authority citation paragraph (d)(5)(v)(G) of this section valuation rule of this paragraph (e) on for part 1 continues to read in part as beginning on or after January 1, 2018. the first day on which the commuting follows: * * * * * valuation rule of paragraph (f) of this Authority: 26 U.S.C. 7805 * * * (e) * * * section was not used because the vehicle had a fair market value in excess ■ Par. 2. Section 1.61–21 is amended by (1) * * * (iii) * * * of the inflation-adjusted limitation of revising paragraph (d)(5)(v)(D), adding (A) In general. The value of the use of paragraph (e)(1)(iii) of this section, as paragraphs (d)(5)(v)(G) and (H), revising an automobile (as defined in paragraph published by the Service in a notice or paragraph (e)(1)(iii)(A), revising (d)(1)(ii) of this section) may not be revenue procedure applicable to the paragraph (e)(5)(i), and adding determined under the vehicle cents-per- year the commuting valuation rule was paragraphs (e)(5)(vi) and (e)(6), to read mile valuation rule of this paragraph (e) first not used, the employer may adopt as follows: for a calendar year if the fair market the vehicle cents-per-mile valuation rule § 1.61–21 Taxation of fringe benefits. value of the automobile (determined for the 2018 or 2019 taxable year, * * * * * pursuant to paragraphs (d)(5)(i) through provided the fair market value of the (d) * * * (iv) of this section as of the first date on vehicle does not exceed $50,000 on (5) * * * which the automobile is made available January 1, 2018, or $50,400 on January (v) * * * to any employee of the employer for 1, 2019, respectively. However, in (D) Limitations on use of fleet-average personal use) exceeds $50,000, as accordance with paragraph (e)(5)(ii) of rule. The rule provided in this adjusted by section 280F(d)(7). The first this section, an employer that adopts the paragraph (d)(5)(v) may not be used for such adjustment shall be for calendar vehicle cents-per-mile valuation rule any automobile the fair market value of year 2019. pursuant to this paragraph (e)(5)(vi) which (determined pursuant to * * * * * must continue to use the rule for all paragraphs (d)(5)(i) through (iv) of this (5) * * * subsequent years in which the vehicle section as of the first date on which the (i) Use of the vehicle cents-per-mile qualifies for use of the rule, except that automobile is made available to any valuation rule by an employer. An the employer may, for any year during employee of the employer for personal employer must adopt the vehicle cents- which use of the vehicle qualifies for use) exceeds $50,000, as adjusted by per-mile valuation rule of this paragraph the commuting valuation rule of section 280F(d)(7). The first such (e) for a vehicle to take effect by the first paragraph (f) of this section, use the adjustment shall be for calendar year day on which the vehicle is used by an commuting valuation rule with regard to 2019. In addition, the rule provided in employee of the employer for personal the vehicle. this paragraph (d)(5)(v) may only be use (or, if the commuting valuation rule (6) Applicability date. Paragraphs used for automobiles that the employer of paragraph (f) of this section is used (e)(1)(iii)(A) and (e)(5)(i), and (vi) of this reasonably expects will regularly be when the vehicle is first used by an section apply to taxable years beginning used in the employer’s trade or employee of the employer for personal on or after [INSERT DATE OF business. For rules concerning when an use, the first day on which the PUBLICATION OF THE FINAL RULE automobile is regularly used in the commuting valuation rule is not used). IN THE Federal Register]. employer’s business, see paragraph * * * * * Notwithstanding the first sentence of (e)(1)(iv) of this section. (vi) Transition rule for 2018 and 2019. this paragraph (e)(6), any taxpayer may * * * * * For a vehicle first made available to any choose to apply paragraph (e)(5)(vi) of (G) Transition rule for 2018 and 2019. employee of the employer for personal this section beginning on or after Notwithstanding paragraph (d)(5)(v)(B) use before calendar year 2018, if an January 1, 2018. of this section, an employer that did not employer did not qualify under this * * * * * qualify to use the fleet-average valuation paragraph (e)(5) to adopt the vehicle Kirsten Wielobob, rule prior to January 1, 2018 with cents-per-mile valuation rule on the first respect to any automobile (including a day on which the vehicle is used by the Deputy Commissioner for Services and Enforcement. truck or van) because the fair market employee for personal use because the value of the vehicle exceeded the fair market value of the vehicle [FR Doc. 2019–18044 Filed 8–22–19; 8:45 am] inflation-adjusted maximum value exceeded the inflation-adjusted BILLING CODE 4830–01–P requirement of paragraph (d)(5)(v)(D) of limitation of paragraph (e)(1)(iii), as published by the Service in a notice or this section, as published by the Service DEPARTMENT OF THE TREASURY in a notice or revenue procedure revenue procedure applicable to the applicable to the year the vehicle was year the vehicle was first used by the Internal Revenue Service first made available to any employee of employee for personal use, may first the employer, may adopt the fleet- adopt the vehicle cents-per-mile 26 CFR Part 1 average valuation rule for 2018 or 2019 valuation rule for the 2018 or 2019 with respect to the vehicle, provided the taxable year, provided the fair market [REG–105476–18] fair market value of the vehicle does not value of the vehicle does not exceed RIN 1545–BO60 exceed $50,000 on January 1, 2018, or $50,000 on January 1, 2018, or $50,400 $50,400 on January 1, 2019, on January 1, 2019, respectively. Withholding of Tax and Information respectively. Similarly, for a vehicle first made Reporting With Respect to Interests in (H) Applicability date. Paragraphs available to any employee of the Partnerships Engaged in the Conduct (d)(5)(v)(D), and (G) of this section apply employer for personal use before of a U.S. Trade or Business; Hearing to taxable years beginning on or after calendar year 2018, if the commuting Cancellation [INSERT DATE OF PUBLICATION OF valuation rule of paragraph (f) of this THE FINAL RULE IN THE Federal section was used when the vehicle was AGENCY: Internal Revenue Service (IRS), Register]. Notwithstanding the first first used by the employee for personal Treasury.

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ACTION: Cancellation of notice of public DEPARTMENT OF HOMELAND date this year from the date published hearing on proposed rulemaking. SECURITY in the Code of Federal Regulations (CFR) at Table to 33 CFR 100.501 at SUMMARY: This document cancels a Coast Guard (b.)19. The estimated date for this public hearing on proposed regulations annual event listed in the regulation is to implement certain sections of the 33 CFR Part 100 either the first or second Saturday or Internal Revenue Code, including [Docket Number USCG–2019–0634] Sunday of May, or the second or third sections added to the Internal Revenue Saturday and Sunday of September. RIN 1625–AA08 This year, the Ocean City Grand Prix is Code by the Tax Cuts and Jobs Act, that being held on September 29, 2019, or relate to the withholding of tax and Special Local Regulation; North the fourth Sunday of September. The information reporting with respect to Atlantic Ocean, Ocean City, MD high-speed power boat racing consists of certain dispositions of interests in AGENCY: Coast Guard, DHS. approximately 35 participating offshore partnerships engaged in the conduct of race boats of various classes, 21 to 50 ACTION: Notice of proposed rulemaking. a trade or business within the United feet in length, operating along a States. SUMMARY: The Coast Guard is proposing designated, marked racetrack-type course located in the North Atlantic DATES: The public hearing, originally to establish special local regulations for certain waters of the North Atlantic Ocean, at Ocean City, MD. Hazards from scheduled for August 26, 2019 at 10:00 the power boat racing event include a.m. is cancelled. Ocean. This action is necessary to provide for the safety of life on these participants operating near a designated FOR FURTHER INFORMATION CONTACT: navigable waters located at Ocean City, navigation channel, as well as injury to Regina Johnson, Publications and MD, during a high-speed power boat persons and damage to property that Regulations Specialist at (202) 317-6901 racing event on September 29, 2019. involve vessel mishaps during high- (not a toll-free number). This proposed rulemaking would speed power boat races conducted on prohibit persons and vessels from being navigable waters located near the ADDRESSES: The cancelled hearing was in the regulated area unless authorized shoreline. The Captain of the Port originally scheduled to be held at the by the Captain of the Port Maryland- (COTP) Maryland-National Capital Internal Revenue Service Building, 1111 National Capital Region or Coast Guard Region has determined that potential Constitution Avenue NW, Washington, Patrol Commander. We invite your hazards associated with the power boat DC 20224. comments on this proposed rulemaking. races would be a safety concern for anyone intending to participate in this SUPPLEMENTARY INFORMATION: A notice DATES: Comments and related material event or for vessels that operate within of proposed rulemaking and notice of must be received by the Coast Guard on specified waters of the North Atlantic public hearing that appeared in the or before September 9, 2019. Ocean at Ocean City, MD. Federal Register on Wednesday, July ADDRESSES: You may submit comments The purpose of this rulemaking is to 24, 2019 (84 FR 35581) announced that identified by docket number USCG– protect event participants, spectators a public hearing was scheduled August 2019–0634 using the Federal and transiting vessels on certain waters 26, 2019 at 10:00 a.m. in the IRS eRulemaking Portal at https:// of the North Atlantic Ocean at Ocean Auditorium, Internal Revenue Service www.regulations.gov. See the ‘‘Public City, MD before, during, and after the Building, 1111 Constitution Avenue Participation and Request for scheduled event. The Coast Guard NW, Washington, DC. The subject of the Comments’’ portion of the proposes this rulemaking under public hearing is under section 1446 of SUPPLEMENTARY INFORMATION section for authority in 46 U.S.C. 70041, which the Internal Revenue Code. further instructions on submitting authorizes the Coast Guard to establish comments. and define special local regulations. The public comment period for these regulations expired on August 8, 2019. FOR FURTHER INFORMATION CONTACT: If III. Discussion of Proposed Rule The notice of proposed rulemaking and you have questions on this rule, call or The COTP Maryland-National Capital notice of hearing instructed those email Mr. Ron Houck, U.S. Coast Guard Region proposes to establish special interested in testifying at the public Sector Maryland-National Capital local regulations from 8:30 a.m. through hearing to submit an outline of the Region; telephone 410–576–2674, email 5:30 p.m. on September 29, 2019. There topics to be discussed. The outline of [email protected]. is no alternate date planned for this topics to be discussed was due by SUPPLEMENTARY INFORMATION: event. The regulated area would cover August 8, 2019. As of August 8, 2019, I. Table of Abbreviations all navigable waters of the North no one has requested to speak. Atlantic Ocean, within an area bounded Therefore, the public hearing scheduled CFR Code of Federal Regulations by the following coordinates: COTP Captain of the Port commencing at a point near the for August 26, 2019 at 10:00 a.m. is DHS Department of Homeland Security cancelled. shoreline at latitude 38°21′42″ N, FR Federal Register ° ′ ″ NPRM Notice of proposed rulemaking longitude 075 04 11 W, thence east to Martin V. Franks, ° ′ ″ PATCOM Coast Guard Patrol Commander latitude 38 21 33 N, longitude Branch Chief, Publications and Regulations § Section 075°03′10″ W, thence southwest to Branch, Legal Processing Division, Associate U.S.C. United States Code latitude 38°19′25″ N, longitude Chief Counsel. 075°04′02″ W, thence west to the II. Background, Purpose, and Legal [FR Doc. 2019–18308 Filed 8–21–19; 4:15 pm] shoreline at latitude 38°19′35″ N, Basis BILLING CODE 4830–01–P longitude 075°05′02″ W, at Ocean City, OPA Racing LLC of Brick Township, MD. The regulated area is NJ, notified the Coast Guard through approximately 4,500 yards in length and submission of a marine event 1,600 yards in width. application that this year’s Ocean City This proposed rule provides Grand Prix would be held on a different additional information about areas

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within the regulated area and their Executive orders and we discuss First qualifies and how and to what degree definitions. These areas include ‘‘Race Amendment rights of protestors. this rule would economically affect it. Area,’’ ‘‘Buffer Zone’’, and ‘‘Spectator Under section 213(a) of the Small A. Regulatory Planning and Review Area.’’ Business Regulatory Enforcement The proposed duration special local Executive Orders 12866 and 13563 Fairness Act of 1996 (Pub. L. 104–121), regulations and size of the regulated direct agencies to assess the costs and we want to assist small entities in area are intended to ensure the safety of benefits of available regulatory understanding this proposed rule. If the life on these navigable waters before, alternatives and, if regulation is rule would affect your small business, during, and after the high-speed power necessary, to select regulatory organization, or governmental boat racing event, scheduled from 9 a.m. approaches that maximize net benefits. jurisdiction and you have questions to 5 p.m. on September 29, 2019. The Executive Order 13771 directs agencies concerning its provisions or options for COTP and the Coast Guard Patrol to control regulatory costs through a compliance, please contact the person Commander (PATCOM) would have budgeting process. This NPRM has not listed in the FOR FURTHER INFORMATION authority to forbid and control the been designated a ‘‘significant CONTACT section. The Coast Guard will movement of all vessels and persons, regulatory action,’’ under Executive not retaliate against small entities that including event participants, in the Order 12866. Accordingly, the NPRM question or complain about this regulated area. When hailed or signaled has not been reviewed by the Office of proposed rule or any policy or action of by an official patrol, a vessel or person Management and Budget (OMB), and the Coast Guard. in the regulated area would be required pursuant to OMB guidance it is exempt C. Collection of Information to immediately comply with the from the requirements of Executive directions given by the COTP or Order 13771. This proposed rule would not call for PATCOM. If a person or vessel fails to This regulatory action determination a new collection of information under follow such directions, the Coast Guard is based on the size, duration and the Paperwork Reduction Act of 1995 may expel them from the area, issue location of the regulated area. Vessel (44 U.S.C. 3501–3520). them a citation for failure to comply, or traffic would be able to safely transit D. Federalism and Indian Tribal both. around this regulated area, which would Except for Ocean City Grand Prix Governments impact a small designated area of the participants and vessels already at A rule has implications for federalism North Atlantic Ocean for 9 hours. The berth, a vessel or person would be under Executive Order 13132 Coast Guard would issue a Broadcast required to get permission from the (Federalism), if it has a substantial Notice to Mariners via VHF–FM marine COTP or PATCOM before entering the direct effect on the States, on the channel 16 about the status of the regulated area. Vessel operators can relationship between the national regulated area. Moreover, the rule request permission to enter and transit government and the States, or on the would allow vessels to seek permission through the regulated area by contacting distribution of power and to enter the regulated area, and vessel the PATCOM on VHF–FM channel 16. responsibilities among the various traffic would be able to safely transit the Vessel traffic would be able to safely levels of government. We have analyzed regulated area once the PATCOM deems transit the regulated area once the this proposed rule under that Order and it safe to do so. PATCOM deems it safe to do so. A have determined that it is consistent person or vessel not registered with the B. Impact on Small Entities with the fundamental federalism event sponsor as a participant or principles and preemption requirements The Regulatory Flexibility Act of assigned as official patrols would be described in Executive Order 13132. 1980, 5 U.S.C. 601–612, as amended, considered a spectator. Official Patrols Also, this proposed rule does not have requires Federal agencies to consider are any vessel assigned or approved by tribal implications under Executive the potential impact of regulations on the Commander, Coast Guard Sector Order 13175 (Consultation and small entities during rulemaking. The Maryland-National Capital Region with Coordination with Indian Tribal term ‘‘small entities’’ comprises small a commissioned, warrant, or petty Governments) because it would not businesses, not-for-profit organizations officer on board and displaying a Coast have a substantial direct effect on one or that are independently owned and Guard ensign. more Indian tribes, on the relationship If permission is granted by the COTP operated and are not dominant in their between the Federal Government and or PATCOM, a person or vessel would fields, and governmental jurisdictions Indian tribes, or on the distribution of be allowed to enter the regulated area or with populations of less than 50,000. power and responsibilities between the pass directly through the regulated area The Coast Guard certifies under 5 U.S.C. Federal Government and Indian tribes. as instructed. Vessels would be required 605(b) that this proposed rule would not If you believe this proposed rule has to operate at a safe speed that minimizes have a significant economic impact on implications for federalism or Indian wake while within the regulated area. a substantial number of small entities. tribes, please contact the person listed Official patrol vessels will direct While some owners or operators of in the FOR FURTHER INFORMATION spectator vessels while within the vessels intending to transit the safety CONTACT section. zone may be small entities, for the regulated area. Only participant vessels E. Unfunded Mandates Reform Act and official patrol vessels would be reasons stated in section (IV. A) above, allowed to enter the race area. this proposed rule would not have a The Unfunded Mandates Reform Act The regulatory text we are proposing significant economic impact on any of 1995 (2 U.S.C. 1531–1538) requires appears at the end of this document. vessel owner or operator. Federal agencies to assess the effects of If you think that your business, their discretionary regulatory actions. In IV. Regulatory Analyses organization, or governmental particular, the Act addresses actions We developed this proposed rule after jurisdiction qualifies as a small entity that may result in the expenditure by a considering numerous statutes and and that this rule would have a State, local, or tribal government, in the Executive orders related to rulemaking. significant economic impact on it, aggregate, or by the private sector of Below we summarize our analyses please submit a comment (see $100,000,000 (adjusted for inflation) or based on a number of these statutes and ADDRESSES) explaining why you think it more in any one year. Though this

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proposed rule would not result in such www.regulations.gov. If your material 075°04′43.28″ W, thence east to latitude an expenditure, we do discuss the cannot be submitted using https:// 38°19′44.23″ N, longitude 075°04′29.89″ effects of this rule elsewhere in this www.regulations.gov, contact the person W, thence north and parallel to Ocean preamble. in the FOR FURTHER INFORMATION City, MD shoreline to latitude CONTACT section of this document for 38°21′23.24″ N, longitude 075°03′48.87″ F. Environment alternate instructions. W, thence west to latitude 38°21′25.12″ We have analyzed this proposed rule We accept anonymous comments. All N, longitude 075°04′02.45″ W; thence under Department of Homeland comments received will be posted south to the point of origin. Security Directive 023–01 and without change to https:// (3) Buffer zone. The buffer zone is a Environmental Planning COMDTINST www.regulations.gov and will include polygon in shape measuring 5090.1 (series), which guide the Coast any personal information you have approximately 500 yards in all Guard in complying with the National provided. For more about privacy and directions surrounding the entire race Environmental Policy Act of 1969 (42 the docket, visit https:// area described in paragraph (a) of this U.S.C. 4321–4370f), and have made a www.regulations.gov/privacyNotice. section. The area is bounded by a line preliminary determination that this Documents mentioned in this NPRM commencing at a point near the action is one of a category of actions that as being available in the docket, and all shoreline at position latitude 38°21′42″ do not individually or cumulatively public comments, will be in our online N, longitude 075°04′11″ W; thence east have a significant effect on the human docket at https://www.regulations.gov to latitude 38°21′35″ N, longitude environment. This proposed rule and can be viewed by following that 075°03′24″ W; thence southwest to involves implementation of regulations website’s instructions. Additionally, if latitude 38°19′28″ N, longitude within 33 CFR part 100 applicable to you go to the online docket and sign up 075°04′17″ W; thence west to the organized marine events on the for email alerts, you will be notified shoreline at latitude 38°19′35″ N, navigable waters of the United States when comments are posted or a final longitude 075°05′02″ W, at Ocean City, that could negatively impact the safety rule is published. MD. of waterway users and shore side (4) Spectator area. The designated activities in the event area lasting for List of Subjects in 33 CFR Part 100 spectator area is a polygon in shape nine hours. Normally such actions are Marine safety, Navigation (water), measuring approximately 3,500 yards in categorically excluded from further Reporting and recordkeeping length by 350 yards in width. The area review under paragraph L[61] in Table requirements, Waterways. is bounded by a line commencing at 3–1 of U.S. Coast Guard Environmental For the reasons discussed in the position latitude 38°19′40″ N, longitude Planning Implementing Procedures preamble, the Coast Guard proposes to 075°04′12″ W, thence east to latitude 5090.1. A preliminary Record of amend 33 CFR part 100 as follows: 38°19′37″ N, longitude 075°03′59″ W, Environmental Consideration thence northeast to latitude 38°21′17″ N, supporting this determination is PART 100—SAFETY OF LIFE ON longitude 075°03′17″ W, thence west to available in the docket where indicated NAVIGABLE WATERS latitude 38°21′20″ N, longitude under ADDRESSES. We seek any 075°03′31″ W, thence southwest to point ■ comments or information that may lead 1. The authority citation for part 100 of origin. to the discovery of a significant continues to read as follows: (b) Definitions. As used in this environmental impact from this Authority: 46 U.S.C. 70041; 33 CFR 1.05– section: proposed rule. 1. Buffer zone is a neutral area that ■ surrounds the perimeter of the Race G. Protest Activities 2. Add § 100.501T05–0634 to read as follows: Area within the regulated area described The Coast Guard respects the First by this section. The purpose of a buffer Amendment rights of protesters. § 100.501T05–0634 Special Local zone is to minimize potential collision Protesters are asked to contact the Regulation; North Atlantic Ocean, Ocean conflicts with marine event participants person listed in the FOR FURTHER City, MD. or race boats and spectator vessels or INFORMATION CONTACT section to (a) Locations. All coordinates nearby transiting vessels. This area coordinate protest activities so that your reference Datum NAD 1983. provides separation between a Race message can be received without (1) Regulated area. All navigable Area and a specified Spectator Area or jeopardizing the safety or security of waters of the North Atlantic Ocean, other vessels that are operating in the people, places, or vessels. within an area bounded by the vicinity of the regulated area established following coordinates: Commencing at a by the special local regulations. V. Public Participation and Request for point near the shoreline at position Captain of the Port (COTP) Maryland- Comments latitude 38°21′42″ N, longitude National Capital Region means the We view public participation as 075°04′11″ W; thence east to latitude Commander, U.S. Coast Guard Sector essential to effective rulemaking, and 38°21′33″ N, longitude 075°03′10″ W; Maryland-National Capital Region or will consider all comments and material thence southwest to latitude 38°19′25″ any Coast Guard commissioned, warrant received during the comment period. N, longitude 075°04′02″ W; thence west or petty officer who has been authorized Your comment can help shape the to the shoreline at latitude 38°19′35″ N, by the COTP to act on his behalf. outcome of this rulemaking. If you longitude 075°05′02″ W, at Ocean City, Coast Guard Patrol Commander submit a comment, please include the MD. The race area, buffer area, and (PATCOM) means a commissioned, docket number for this rulemaking, spectator area are within the regulated warrant, or petty officer of the U.S. indicate the specific section of this area. Coast Guard who has been designated document to which each comment (2) Race area. The race area is a by the Commander, Coast Guard Sector applies, and provide a reason for each polygon in shape measuring Maryland-National Capital Region. suggestion or recommendation. approximately 3,500 yards in length by Official patrol means any vessel We encourage you to submit 350 yards in width. The area is bounded assigned or approved by Commander, comments through the Federal by a line commencing at position Coast Guard Sector Maryland-National eRulemaking Portal at https:// latitude 38°19′46.85″ N, longitude Capital Region with a commissioned,

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warrant, or petty officer on board and MHz) or the PATCOM on Marine Band Confidential Business Information (CBI) displaying a Coast Guard ensign. Radio, VHF–FM channel 16 (156.8 or other information whose disclosure is Participant means a person or vessel MHz). restricted by statute. Multimedia registered with the event sponsor as (6) The Coast Guard will publish a submissions (audio, video, etc.) must be participating in the Ocean City Grand notice in the Fifth Coast Guard District accompanied by a written comment. Prix or otherwise designated by the Local Notice to Mariners and issue a The written comment is considered the event sponsor as having a function tied marine information broadcast on VHF– official comment and should include to the event. FM marine band radio announcing discussion of all points you wish to Race area is an area described by a specific event date and times. make. EPA will generally not consider line bound by coordinates provided in (d) Enforcement officials. The Coast comments or comment contents located latitude and longitude that outlines the Guard may be assisted with marine outside of the primary submission (i.e., boundary of a race area within the event patrol and enforcement of the on the web, cloud, or other file sharing regulated area defined by this section. regulated area by other Federal, State, system). For additional submission Spectator means a person or vessel and local agencies. methods, the full EPA public comment not registered with the event sponsor as (e) Enforcement period. This section policy, information about CBI or participants or assigned as official will be enforced from 8:30 a.m. to 5:30 multimedia submissions, and general patrols. p.m. on September 29, 2019. (c) Special local regulations. (1) The guidance on making effective COTP Maryland-National Capital Dated: August 20, 2019. comments, please visit http:// Region or PATCOM may forbid and Joseph B. Loring, www2.epa.gov/dockets/commenting- control the movement of all vessels and Captain, U.S. Coast Guard, Captain of the epa-dockets. Port Maryland-National Capital Region. persons, including event participants, in FOR FURTHER INFORMATION CONTACT: the regulated area. When hailed or [FR Doc. 2019–18226 Filed 8–22–19; 8:45 am] Thornell Cheeks, RCRA Programs and signaled by an official patrol, a vessel or BILLING CODE 9110–04–P Cleanup Branch, Land, Chemicals and person in the regulated area shall Redevelopment Division, U.S. immediately comply with the directions Environmental Protection Agency, given by the patrol. Failure to do so may ENVIRONMENTAL PROTECTION Region 4, Atlanta Federal Center, 61 result in the Coast Guard expelling the AGENCY Forsyth Street SW, Atlanta, Georgia person or vessel from the area, issuing 30303–8960; telephone number: (404) 40 CFR Part 271 a citation for failure to comply, or both. 562–8479; fax number: (404) 562–9964; The COTP Maryland-National Capital [EPA–R04–RCRA–2019–0425; FRL–9998– email address: [email protected]. Region or PATCOM may terminate the 61–Region 4] event, or a participant’s operations at SUPPLEMENTARY INFORMATION: North Carolina: Proposed any time the COTP Maryland-National A. Why are revisions to state programs Authorization of State Hazardous Capital Region or PATCOM believes it necessary? necessary to do so for the protection of Waste Management Program life or property. Revisions States that have received final (2) Except for participants and vessels authorization from EPA under RCRA already at berth, a person or vessel AGENCY: Environmental Protection Agency (EPA). section 3006(b), 42 U.S.C. 6926(b), must within the regulated area at the start of maintain a hazardous waste program ACTION: Proposed rule. enforcement of this section must that is equivalent to, consistent with, immediately depart the regulated area. SUMMARY: North Carolina has applied to and no less stringent than the Federal (3) A spectator must contact the the Environmental Protection Agency program. As the Federal program PATCOM to request permission to (EPA) for final authorization of changes changes, states must change their either enter or pass through the to its hazardous waste program under programs and ask EPA to authorize the regulated area. The PATCOM, and the Resource Conservation and changes. Changes to state programs may official patrol vessels enforcing this Recovery Act (RCRA), as amended. EPA be necessary when Federal or state regulated area, can be contacted on has reviewed North Carolina’s statutory or regulatory authority is marine band radio VHF–FM channel 16 application and has determined, subject modified or when certain other changes (156.8 MHz) and channel 22A (157.1 to public comment, that these changes occur. Most commonly, states must MHz). If permission is granted, the satisfy all requirements needed to change their programs because of spectator must pass directly through the qualify for final authorization. changes to EPA’s regulations in 40 Code regulated area as instructed by Therefore, we are proposing to authorize of Federal Regulations (CFR) parts 124, PATCOM. A vessel within the regulated the State’s changes. EPA seeks public 260 through 268, 270, 273, and 279. area must operate at safe speed that comment prior to taking final action. minimizes wake. New Federal requirements and (4) Only participant vessels and DATES: Comments must be received on prohibitions imposed by Federal official patrol vessels are allowed to or before September 23, 2019. regulations that EPA promulgates enter the race area. ADDRESSES: Submit your comments, pursuant to the Hazardous and Solid (5) A person or vessel that desires to identified by Docket ID No. EPA–R04– Waste Amendments of 1984 (HSWA) transit, moor, or anchor within the RCRA–2019–0425, at https:// take effect in authorized states at the regulated area must obtain authorization www.regulations.gov. Follow the online same time that they take effect in from the COTP Maryland-National instructions for submitting comments. unauthorized states. Thus, EPA will Capital Region or PATCOM. A person or Once submitted, comments cannot be implement those requirements and vessel seeking such permission can edited or removed from prohibitions in North Carolina, contact the COTP Maryland-National www.regulations.gov. EPA may publish including the issuance of new permits Capital Region at telephone number any comment received to its public implementing those requirements, until 410–576–2693 or on Marine Band docket. Do not submit electronically any the State is granted authorization to do Radio, VHF–FM channel 16 (156.8 information you consider to be so.

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B. What decisions has EPA made in this requirements, and suspend or revoke 15633); June 23, 1994, effective August proposed rule? permits; and 22, 1994 (59 FR 32378); November 10, • On June 4, 2019, North Carolina Take enforcement actions regardless 1994, effective January 9, 1995 (59 FR formally requested authorization of of whether the State has taken its own 56000); September 27, 1995, effective changes to its hazardous waste actions. November 27, 1995 (60 FR 49800); April management program that correspond to This action will not impose additional 25, 1996, effective June 24, 1996 (61 FR certain Federal rules promulgated requirements on the regulated 18284); October 23, 1998, effective between July 1, 2004 and June 30, 2017 community because the regulations for December 22, 1998 (63 FR 56834); (including RCRA Clusters 1 XV, XVII, which EPA is proposing to authorize August 25, 1999, effective October 25, XX, XXIII, XXIV, XXV, and XXVI). EPA North Carolina are already effective 1999 (64 FR 46298); February 28, 2002, concludes that North Carolina’s under North Carolina State law and are effective April 29, 2002 (67 FR 9219); application 2 to revise its authorized not changed by today’s proposed action. December 14, 2004, effective February program meets all of the statutory and 14, 2005 (69 FR 74444); March 23, 2005, D. What happens if EPA receives effective May 23, 2005 (70 FR 14556); regulatory requirements established comments that oppose this action? under RCRA, as set forth in RCRA February 7, 2011, effective April 8, 2011 section 3006(b), 42 U.S.C. 6926(b), and EPA will evaluate any comments (76 FR 6561); June 14, 2013, effective 40 CFR part 271. Therefore, EPA received on this proposed action and August 13, 2013 (78 FR 35766); and proposes to grant North Carolina final will make a final decision on approval August 24, 2015, effective October 23, authorization to operate its hazardous or disapproval of North Carolina’s 2015 (80 FR 51141). proposed authorization. Our decision waste program with the changes F. What changes are we proposing with will be published in the Federal described in the authorization today’s action? application, and as outlined below in Register. You may not have another Section F of this document. opportunity to comment. If you want to On June 4, 2019, North Carolina North Carolina has responsibility for comment on this authorization, you formally requested authorization, in permitting treatment, storage, and must do so at this time. accordance with 40 CFR 271.21, of changes to its hazardous waste disposal facilities within its borders E. What has North Carolina previously (except in Indian country) and for management program associated with been authorized for? 3 carrying out the aspects of the RCRA Checklists 206.1, 207.1, 215, 222, and program described in its program North Carolina initially received final 230 through 238. The June 4, 2019 revision application, subject to the authorization on December 14, 1984, submittal amended North Carolina’s limitations of HSWA, as discussed effective December 31, 1984 (49 FR initial program revision application above. 48694), to implement a hazardous waste with respect to these checklists, dated management program. EPA granted January 4, 2019, with revised Checklists C. What is the effect of this proposed authorization for changes to North 206.1, 207.1, 236, and 237; a revised authorization decision? Carolina’s program on the following ‘‘Summary of RCRA Clusters and If North Carolina is authorized for the dates: March 25, 1986, effective April 8, Checklists Submitted;’’ a modified changes described in North Carolina’s 1986 (51 FR 10211); August 5, 1988, Program Description; and a Statutory authorization application, these changes effective October 4, 1988 (53 FR 29460); Checklist. The January 4, 2019 will become part of the authorized State February 9, 1989, effective April 10, submittal, as amended by the June 4, hazardous waste program and will 1989 (54 FR 6290); September 22, 1989, 2019 submittal, constitutes a complete therefore be federally enforceable. North effective November 21, 1989 (54 FR program revision application. EPA Carolina will continue to have primary 38993); January 18, 1991, effective proposes to determine, subject to receipt enforcement authority and March 19, 1991 (56 FR 1929); April 10, of written comments that oppose this responsibility for its State hazardous 1991, effective June 9, 1991 (56 FR action, that North Carolina’s hazardous waste program. EPA would maintain its 14474); July 19, 1991, effective waste program revisions are equivalent authorities under RCRA sections 3007, September 17, 1991 (56 FR 33206); to, consistent with, and no less stringent 3008, 3013, and 7003, including its April 27, 1992, effective June 26, 1992 than the Federal program, and therefore authority to: (57 FR 15254); December 12, 1992, satisfy all of the requirements necessary • Conduct inspections, and require effective February 16, 1993 (57 FR to qualify for final authorization. monitoring, tests, analyses, and reports; 59825); January 27, 1994, effective Therefore, EPA is proposing to • Enforce RCRA requirements, March 28, 1994 (59 FR 3792); April 4, authorize North Carolina for the including authorized State program 1994, effective June 3, 1994 (59 FR following program changes:

Description of Federal Federal Register date and requirement page Analogous State authority *

Checklist 206.1, Nonwastewaters from Dyes and Pig- 70 FR 35032, 6/16/05 ...... 15A NCAC 13A .0106(d). ments (Corrections). Checklist 207.1, Corrections;, Uniform Hazardous 70 FR 35034, 6/16/05 ...... 15A NCAC 13A .0107(b) & (j); 15A NCAC 13A Waste Manifest Rule 4. .0109(f); and 15A NCAC 13A .0110(e). Checklist 215, Cathode Ray Tubes Rule 5 ...... 71 FR 42928, 7/28/06 ...... 15A NCAC 13A .0102(b); and 15A NCAC 13A .0106(a) & (e).

1 A ‘‘cluster’’ is a grouping of hazardous waste 3 A ‘‘checklist’’ is developed by EPA for each (Hazardous Waste Electronic Manifest Rule), for rules that EPA promulgates from July 1st of one Federal rule amending the RCRA regulations. The which EPA is also authorizing North Carolina at year to June 30th of the following year. checklists document the changes made by each this time, and Checklist 239 (Hazardous Waste 2 As explained below in Section F, North Federal rule and are presented and numbered in Electronic Manifest User Fee Rule), for which EPA chronological order by date of promulgation. Carolina’s application is comprised of its January 4, is not authorizing North Carolina at this time. 2019 submittal, as amended by its June 4, 2019 4 Some provisions contained in this Rule were submittal. subsequently amended or removed by Checklist 231

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Description of Federal Federal Register date and requirement page Analogous State authority *

Checklist 222, OECD Requirements; Export Shipments 75 FR 1236, 1/8/10 ...... 15A NCAC 13A .0101(b); 15A NCAC 13A .0107(a) & of Spent Lead-Acid Batteries 6. (f); 15A NCAC 13A .0108(a); 15A NCAC 13A .0109(c) & (f); 15A NCAC 13A .0110(b) & (e); and 15A NCAC 13A .0111(c). Checklist 230, Conditional Exclusion for Carbon Diox- 79 FR 350, 1/3/14 ...... 15A NCAC 13A .0102(b) and 15A NCAC 13A ide (CO2) Streams in Geologic Sequestration Activi- .0106(a). ties. Checklist 231, Hazardous Waste Electronic Manifest 79 FR 7518, 2/7/14 ...... 15A NCAC 13A .0101(b) & (d); 15A NCAC 13A Rule 7. .0102(b); 15A NCAC 13A .0107(b); 15A NCAC 13A .0108(b); 15A NCAC 13A .0109(f); and 15A NCAC 13A .0110(e). Checklist 232, Revisions to the Export Provisions of 79 FR 36220, 6/26/14 ...... 15A NCAC 13A .0101(b); 15A NCAC 13A .0102(b); the Cathode Ray Tube (CRT) Rule. and 15A NCAC 13A .0106(e). Checklist 233, Revisions to the Definition of Solid Waste and: 233A ...... 80 FR 1694, 1/13/15 ...... 15A NCAC 13A .0103(c). 233B ...... 15A NCAC 13A .0102(b) & (c); 15A NCAC 13A .0103(c); and 15A NCAC 13A .0106(a). Response to Vacatur of Certain Provisions of the Defi- nition of Solid Waste Rule: 233C ...... 83 FR 24664, 5/30/18 ...... 15A NCAC 13A .0106(a). 233D2 ...... 15A NCAC 13A .0101(b); 15A NCAC 13A .0102(b); 15A NCAC 13A .0103(c); 15A NCAC 13A .0106(a), (f), & (i); and 15A NCAC .0113(g). 233E ...... 15A NCAC 13A .0102(b); and 15A NCAC 13A .0106(a), (g), (h), (j), (k), & (l). Checklist 234, Vacatur of the Comparable Fuels Rule 80 FR 18777, 4/8/15 ...... 15A NCAC 13A .0102(b) and 15A NCAC 13A and the Gasification Rule. .0106(a) & (e). Checklist 235, Disposal of Coal Combustion Residuals 80 FR 21302, 4/17/15 ...... 15A NCAC 13A .0106(a). from Electric Utilities. Checklist 236, Imports and Exports of Hazardous 81 FR 85696, 11/28/16, 82 FR 15A NCAC 13A .0101(e); 15A NCAC 13A .0102(b); Waste 8. 41015, 8/29/17. 15A NCAC 13A .0106(a) & (e); 15A NCAC 13A .0107(a), (d), (f), & (j); 15A NCAC 13A .0108(a) & (b); 15A NCAC 13A .0109(c) & (f); 15A NCAC 13A .0110(b) & (e); 15A NCAC 13A .0111(b) & (c); and 15A NCAC 13A .0119(b), (c), (d), (e), & (f). Checklist 237, Hazardous Waste Generator Improve- 81 FR 85732, 11/28/16 ...... 15A NCAC 13A .0101(d) & (e); 15A NCAC 13A ments Rule. .0102(b); 15A NCAC 13A .0106(a), (d), & (i); 15A NCAC 13A .0107(a), (b), (c), (d), (g), (h), & (i); 15A NCAC 13A .0108(a); 15A NCAC 13A .0109(b), (c), (f), (j), (k), (v), (w), & (y); 15A NCAC 13A .0110(a), (b), (e), (i), (j), (s), (t), & (v); 15A NCAC 13A .0111(c) & (f); 15A NCAC 13A .0112(a) & (e); 15A NCAC 13A .0113(a) & (g); 15A NCAC 13A .0118(b); and 15A NCAC 13A .0119(a) & (g). Checklist 238, Confidentiality Determinations for Haz- 82 FR 60894, 12/26/17 ...... 15A NCAC 13A .0101(d); 15A NCAC 13A .0106(e); ardous Waste Export and Import Documents. and 15A NCAC 13A .0107(f). * The North Carolina regulatory citations are from the North Carolina Administrative Code (NCAC), effective March 1, 2018.

G. Where are the revised State rules such regulations, and they are not EPA has determined that certain different from the Federal rules? federally enforceable. regulations included in North Carolina’s program revision application are more When revised state rules differ from 5 Some provisions contained in this Rule were stringent than the Federal program. the Federal rules in the RCRA state subsequently amended by Checklist 232 (Revisions These more stringent requirements will authorization process, EPA determines to the Export Provisions of the Cathode Ray Tube become part of the federally enforceable whether the state rules are equivalent to, (CRT) Rule), for which EPA is also authorizing RCRA program in North Carolina when more stringent than, or broader in scope North Carolina at this time. authorized. than the Federal program. Pursuant to 6 Some provisions contained in this Rule were First, the North Carolina definition for Section 3009 of RCRA, 42 U.S.C. 6929, subsequently amended or removed by Checklist 236 ‘‘contained’’ at 15A NCAC 13A .0102(c) state programs may contain (Import and Exports of Hazardous Waste), for which EPA is also authorizing North Carolina at this time. is more stringent than the Federal requirements that are more stringent 7 Some provisions contained in this Rule were definition at 40 CFR 260.10 because it than the Federal regulations. Such more subsequently amended or removed by Checklist 239 adds the italicized language at the end stringent requirements can be federally (Hazardous Waste Electronic Manifest User Fee of the following sentence: ‘‘The unit is authorized and, once authorized, Rule), for which EPA is not authorizing North in good condition, with no leaks or become federally enforceable. Although Carolina at this time. other continuing or intermittent 8 the statute does not prevent states from Some provisions contained in this Rule were unpermitted releases of the hazardous adopting regulations that are broader in subsequently amended or removed by Checklist 237 (Hazardous Waste Generator Improvements Rule), secondary materials or hazardous scope than the Federal program, states for which EPA is also authorizing North Carolina constituents originating from the cannot receive Federal authorization for at this time. hazardous secondary materials. . . .’’

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Compare 15A NCAC 13A .0102(c) with after the effective date of the final uniquely affect small governments, as 40 CFR 260.10. authorization. EPA will continue to described in the Unfunded Mandates Second, North Carolina’s program is implement and issue permits for HSWA Reform Act of 1995 (2 U.S.C. 1531– more stringent at 15A NCAC 13A requirements for which North Carolina 1538). For the same reason, this action .0107(a) and (i), the State analogs to 40 is not yet authorized. EPA has the also does not significantly or uniquely CFR 262.16(b)(8)(v) and 40 CFR authority to enforce State-issued permits affect the communities of tribal 262.255. The North Carolina provisions after the State is authorized. governments, as specified by Executive require small quantity and large I. How does today’s proposed action Order 13175 (65 FR 67249, November 9, quantity generators to maintain aisle 2000). This action will not have space of at least two feet in a central affect Indian country (18 U.S.C. 1151) in North Carolina? substantial direct effects on the states, accumulation area. The Federal program on the relationship between the national requires small quantity and large North Carolina is not authorized to government and the states, or on the quantity generators to maintain aisle carry out its hazardous waste program distribution of power and space to allow the unobstructed in Indian country within the State, responsibilities among the various movement of personnel, fire protection which includes the Eastern Band of levels of government, as specified in equipment, spill control equipment, and Cherokee Indians. EPA will continue to Executive Order 13132 (64 FR 43255, decontamination equipment to any area implement and administer the RCRA August 10, 1999), because it merely of facility operation in an emergency, program on these lands. proposes to authorize State unless aisle space is not needed for any J. What is codification and will EPA requirements as part of the State RCRA of these purposes, but does not specify codify North Carolina’s hazardous hazardous waste program without a minimum amount of space. waste program as proposed in this rule? altering the relationship or the It should be noted that states cannot distribution of power and receive authorization for certain Federal Codification is the process of placing citations and references to the State’s responsibilities established by RCRA. regulatory functions included in the This action also is not subject to regulations associated with the statutes and regulations that comprise the State’s authorized hazardous waste Executive Order 13045 (62 FR 19885, Hazardous Waste Electronic Manifest April 23, 1997) because it is not Rule (Checklist 231). Although North program into the Code of Federal Regulations. EPA does this by adding economically significant and it does not Carolina has adopted these regulations make decisions based on environmental to maintain its equivalency with the those citations and references to the authorized State rules in 40 CFR part health or safety risks. This action is not Federal program, it has appropriately subject to Executive Order 13211, maintained the Federal references. See 272. EPA is not proposing to codify the authorization of North Carolina’s ‘‘Actions Concerning Regulations That 15A NCAC 13A .0101(b). Significantly Affect Energy Supply, States also cannot receive changes at this time. However, EPA Distribution, or Use’’ (66 FR 28355, May authorization for certain Federal reserves the ability to amend 40 CFR 22, 2001) because it is not a significant regulatory functions included in the part 272, subpart II for the authorization regulatory action under Executive Order regulations involving international of North Carolina’s program changes at shipments (i.e., import and export a later date. 12866. provisions) associated with the Cathode Under RCRA section 3006(b), EPA K. Statutory and Executive Order Ray Tubes Rule (Checklist 215), the grants a state’s application for Reviews OECD Requirements for Export authorization as long as the state meets Shipments of Spent Lead-Acid Batteries The Office of Management and Budget the criteria required by RCRA. It would Rule (Checklist 222), the Revisions to (OMB) has exempted this action from thus be inconsistent with applicable law the Export Provisions of the CRT Rule the requirements of Executive Order for EPA, when it reviews a state (Checklist 232), the Imports and Exports 12866 (58 FR 51735, October 4, 1993) authorization application, to require the of Hazardous Waste Rule (Checklist and 13563 (76 FR 3821, January 21, use of any particular voluntary 236), and the Confidentiality 2011). This action proposes to authorize consensus standard in place of another Determinations for Hazardous Waste State requirements for the purpose of standard that otherwise satisfies the Export and Import Documents Rule RCRA section 3006 and imposes no requirements of RCRA. Thus, the (Checklist 238). Although North additional requirements beyond those requirements of section 12(d) of the Carolina has also adopted these rules to imposed by State law. Therefore, this National Technology Transfer and maintain its equivalency with the action is not subject to review by OMB. Advancement Act of 1995 (15 U.S.C. Federal program, it has appropriately This action is not an Executive Order 272 note) do not apply. As required by maintained the Federal references. See 13771 (82 FR 9339, February 3, 2017) section 3 of Executive Order 12988 (61 15A NCAC 13A .0101(b). regulatory action because actions such FR 4729, February 7, 1996), in as today’s proposed authorization of proposing this rule, EPA has taken the H. Who handles permits after the final North Carolina’s revised hazardous necessary steps to eliminate drafting authorization takes effect? waste program under RCRA are errors and ambiguity, minimize When final authorization takes effect, exempted under Executive Order 12866. potential litigation, and provide a clear North Carolina will issue permits for all Accordingly, I certify that this action legal standard for affected conduct. EPA the provisions for which it is authorized will not have a significant economic has complied with Executive Order and will administer the permits it impact on a substantial number of small 12630 (53 FR 8859, March 15, 1988) by issues. EPA will continue to administer entities under the Regulatory Flexibility examining the takings implications of any RCRA hazardous waste permits or Act (5 U.S.C. 601 et seq.). Because this this action in accordance with the portions of permits that EPA issued action proposes to authorize pre- ‘‘Attorney General’s Supplemental prior to the effective date of existing requirements under State law Guidelines for the Evaluation of Risk authorization until they expire or are and does not impose any additional and Avoidance of Unanticipated terminated. EPA will not issue any new enforceable duty beyond that required Takings’’ issued under the executive permits or new portions of permits for by State law, it does not contain any order. This action does not impose an the provisions listed in the table above unfunded mandate or significantly or information collection burden under the

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provisions of the Paperwork Reduction the Multicultural Media, Telecom and Rule in MB Docket No. 19–177, FCC 19– Act of 1995 (44 U.S.C. 3501 et seq.). internet Council (MMTC) in MB Docket 54 (rel. June 21, 2019), 84 FR 35063, ‘‘Burden’’ is defined at 5 CFR 1320.3(b). No. 19–177 to extend the deadlines for July 22, 2019. For good cause shown, Executive Order 12898 (59 FR 7629, filing comments and replies in response the Media Bureau, pursuant to delegated February 16, 1994) establishes federal to the Commission’s document on authority, granted the motion. executive policy on environmental possible improvements to equal Comments were originally due August justice. Its main provision directs employment opportunity (EEO) 21, 2019, and replies were due federal agencies, to the greatest extent compliance and enforcement. September 5, 2019. Grant of the practicable and permitted by law, to DATES: Comments Due: September 20, MMTC’s request makes comments now make environmental justice part of their 2019. Replies Due: November 4, 2019. due on September 20, 2019 and replies mission by identifying and addressing, ADDRESSES: Electronic Filers: Comments due on November 4, 2019. This as appropriate, disproportionately high may be filed electronically using the proceeding is treated as ‘‘permit-but- and adverse human health or internet by accessing the ECFS: http:// disclose’’ for purposes of the environmental effects of their programs, apps.fcc.gov/ecfs/. Commission’s ex parte rules. See policies, and activities on minority Paper Filers: Parties who choose to generally 47 CFR 1.200–1.216. As a populations and low-income file by paper must file an original and result of the permit but disclose status, populations in the United States. one copy of each filing. ex parte presentations will be governed Because this action proposes • Filings can be sent by hand or by the procedures set forth in Section authorization of pre-existing State rules messenger delivery, by commercial 1.1206 of the Commission’s rules which are at least equivalent to, and no overnight courier, or by first-class or applicable to non-restricted less stringent than existing Federal overnight U.S. Postal Service mail. All proceedings. The full text of the Media requirements, and imposes no filings must be addressed to the Bureau’s Order in Docket No. 19–177 is additional requirements beyond those Commission’s Secretary, Office of the available electronically at https:// imposed by State law, and there are no Secretary, Federal Communications ecfsapi.fcc.gov/file/0730148503545/DA- anticipated significant adverse human Commission. 19-721A1.pdf. health or environmental effects, this • All hand-delivered or messenger- People With Disabilities. To request proposed rule is not subject to Executive delivered paper filings for the materials in accessible formats for Order 12898. Commission’s Secretary must be people with disabilities (Braille, large delivered to FCC Headquarters at 445 print, electronic files, audio format), List of Subjects in 40 CFR Part 271 12th St. SW, Room TW–A325, send an email to [email protected] or call Environmental protection, Washington, DC 20554. The filing hours the Consumer and Governmental Affairs Administrative practice and procedure, are 8:00 a.m. to 7:00 p.m. All hand Bureau at 202–418–0530 (voice), 202– Confidential business information, deliveries must be held together with 418–0432 (TTY). Hazardous waste, Hazardous waste rubber bands or fasteners. Any Federal Communications Commission. transportation, Indian lands, envelopes and boxes must be disposed Marlene Dortch, Intergovernmental relations, Penalties, of before entering the building. Secretary. Reporting and recordkeeping • Commercial overnight mail (other requirements. than U.S. Postal Service Express Mail [FR Doc. 2019–18231 Filed 8–22–19; 8:45 am] BILLING CODE 6712–01–P Authority: This action is issued under the and Priority Mail) must be sent to 9050 authority of sections 2002(a), 3006, and Junction Drive, Annapolis Junction, MD 7004(b) of the Solid Waste Disposal Act as 20701. amended, 42 U.S.C. 6912(a), 6926, and • U.S. Postal Service first-class, DEPARTMENT OF DEFENSE 6974(b). Express, and Priority mail must be GENERAL SERVICES addressed to 445 12th Street SW, Dated: August 5, 2019. ADMINISTRATION Mary S. Walker, Washington, DC 20554. For detailed instructions on Regional Administrator, Region 4. submitting comments and replies and NATIONAL AERONAUTICS AND [FR Doc. 2019–18239 Filed 8–22–19; 8:45 am] additional information on the SPACE ADMINISTRATION BILLING CODE 6560–50–P rulemaking process, see the Commission’s Proposed Rule, MB 48 CFR Part 52 Docket No. 19–177, FCC 19–54, adopted [FAR Case 2018–022; Docket No. FAR– FEDERAL COMMUNICATIONS June 12, 2019, and released June 21, 2019–0010, Seq. No. 01] COMMISSION 2019. RIN 9000–AN80 47 CFR Parts 73 and 76 FOR FURTHER INFORMATION CONTACT: Radhika Karmarkar, Industry Analysis Federal Acquisition Regulations: [MB Docket No. 19–177; FCC 19–721] Division, Media Bureau, Orders Issued via Fax or Electronic [email protected], (202) 418– Commerce Review of EEO Compliance and 1523. Enforcement in Broadcast and AGENCY: Department of Defense (DoD), SUPPLEMENTARY INFORMATION: Multichannel Video Programming This General Services Administration (GSA), Industries document summarizes the Media and National Aeronautics and Space Bureau’s Order in MB Docket No. 19– Administration (NASA). AGENCY: Federal Communications 177 which was adopted and released ACTION: Proposed rule. Commission. July 30, 2019. On July 25, 2019, MMTC ACTION: Proposed rule. filed a motion requesting an extension SUMMARY: DoD, GSA, and NASA are of time to file comments and replies proposing to amend a Federal SUMMARY: This document announces until September 20, 2019, and Acquisition Regulation (FAR) clause to that the Federal Communications November 4, 2019, respectively in permit the issuance of task or delivery Commission granted a motion filed by response to the Commission’s Proposed orders via fax or electronic commerce

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and clarify when an order is considered As part of today’s business environmental, public health and safety ‘‘issued’’ when using these methods. environment, the Government and effects, distributive impacts, and DATES: Interested parties should submit Federal contractors frequently use equity). E.O. 13563 emphasizes the written comments to the Regulatory email, fax, or other electronic commerce importance of quantifying both costs Secretariat at one of the addresses methods to communicate with one and benefits, of reducing costs, of shown below on or before October 22, another. In an effort to reflect current harmonizing rules, and of promoting 2019 to be considered in the business practices and maintain speed flexibility. This is not a significant formulation of a final rule. and efficiency in the ordering process, regulatory action and, therefore, was not this rule updates FAR clause 52.216–18 subject to review under section 6(b) of ADDRESSES: Submit comments to no longer require a separate E.O. 12866, Regulatory Planning and identified by FAR Case 2018–022 by any authorization in the contract to use Review, dated September 30, 1993. This of the following methods: electronic commerce or fax to issue task rule is not a major rule under 5 U.S.C. • Regulations.gov: http:// or delivery orders. The rule also 804. www.regulations.gov. Submit comments identifies when a task or delivery order V. Executive Order 13771 via the Federal eRulemaking portal by is considered ‘‘issued’’ when using such entering ‘‘FAR Case 2018–022’’ under methods. As a result, contracting This rule is not subject to E.O. 13771, the heading ‘‘Enter keyword or ID’’ and officers will no longer need to include because this rule is not a significant selecting ‘‘Search.’’ Select the link supplemental ordering language in the regulatory action under E.O. 12866. ‘‘Comment Now’’ that corresponds with contract when anticipating the use of VI. Regulatory Flexibility Act ‘‘FAR Case 2018–022.’’ Follow the fax or electronic commerce to issue task instructions provided on the screen. or delivery orders. Ordering information DoD, GSA, and NASA do not expect Please include your name, company will be located in one place in the this rule to have a significant economic name (if any), and ‘‘FAR Case 2018– contract. A common understanding of impact on a substantial number of small 022’’ on your attached document. when a task or delivery order is entities within the meaning of the • Mail: General Services considered issued, in such situations, Regulatory Flexibility Act, 5 U.S.C. 601, Administration, Regulatory Secretariat will be applied Governmentwide. et seq. However, an initial regulatory Division (MVCB), 1800 F Street NW, As task or delivery orders are not flexibility analysis (IRFA) has been Second floor, ATTN: Lois Mandell, issued orally as frequently as other performed and is summarized as Washington, DC 20405. issuance methods and the use of such a follows: Instructions: Please submit comments method is dependent upon the The Department of Defense (DoD), only and cite ‘‘FAR Case 2018–022’’ in particular circumstances of the General Services Administration (GSA), all correspondence related to this case. procurement, the authority to issue and National Aeronautics and Space All comments received will be posted orders orally must still be authorized Administration (NASA) are proposing to without change to http:// under the contract and is not being revise the Federal Acquisition www.regulations.gov, including any amended by this rule. Regulation (FAR) to update a clause to personal and/or business confidential automatically permit the issuance of information provided. II. Discussion and Analysis task or delivery orders via fax or electronic commerce, without FOR FURTHER INFORMATION CONTACT: This rule proposes to amend FAR Mr. additional authorization text in the Curtis E. Glover, Sr., Procurement clause 52.216–18, Ordering, to (1) remove the language stating that the use contract and to clarify when an order is Analyst, at 202–501–1448 for considered to be ‘‘issued’’ when using clarification of content. Please cite FAR of fax or electronic commerce may only be used if authorized in the contract; these methods. Case 2018–022. For information The objective of the rule is to update pertaining to status or publication and (2) identify the point in time in which a task or delivery order is the clause language to reflect current schedules, contact the Regulatory business practices and maintain speed Secretariat at (202) 501–4755. Please considered issued when sent by fax or electronically. and efficiency when issuing task and cite ‘‘FAR Case 2018–022.’’ delivery orders under a contract. SUPPLEMENTARY INFORMATION: III. Applicability to Contracts at or DoD, GSA, and NASA do not expect Below the Simplified Acquisition this rule to have a significant economic I. Background Threshold (SAT) and for Commercial impact on a substantial number of small DoD, GSA, and NASA are proposing Items, Including Commercially entities within the meaning of the to amend the FAR to update a clause to Available Off-the-Shelf (COTS) Items Regulatory Flexibility Act, 5 U.S.C. 601, permit the issuance of task or delivery This proposed rule does not create et seq. The rule simply formalizes a orders via fax or electronic commerce, any new provisions or clauses, nor does current business practice. The and to clarify when an order is it change the applicability or burden of Government does not collect data on the considered to be ‘‘issued’’ when using any existing provisions or clauses total number of task and delivery orders these methods. FAR clause 52.216–18, included in solicitations and contracts issued by mail, fax, and/or electronic Ordering, currently states that task or valued at or below the SAT, or for commerce. However, the Federal delivery orders may be issued orally, by commercial items, including COTS Procurement Data System (FPDS) facsimile, or electronic commerce only items. provides the following information for if authorized in the contract schedule. If fiscal year 2018: mailed, task or delivery orders are IV. Executive Orders 12866 and 13563 The Federal Government awarded considered ‘‘issued’’ when the Executive Orders (E.O.s) 12866 and approximately 17,690 new indefinite- Government puts the order in the mail. 13563 direct agencies to assess all costs delivery indefinite-quantity, indefinite- The clause is included in solicitations and benefits of available regulatory delivery definite-quantity, and and contracts when an indefinite- alternatives and, if regulation is requirements contracts; of which delivery definite-quantity, requirements, necessary, to select regulatory approximately 62% were awarded to or indefinite-delivery indefinite- approaches that maximize net benefits approximately 7,420 unique small quantity contract is contemplated. (including potential economic, businesses.

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The proposed rule does not impose (1) If sent by mail (includes transmittal by DATES: Comments must be received by any Paperwork Reduction Act reporting, U.S. mail or private delivery service), the September 23, 2019. Government deposits the order in the mail; recordkeeping, or other compliance ADDRESSES: You may submit comments (2) If sent by fax, the Government transmits requirements on any small entities. The the order to the Contractor’s fax number; or on this document, identified by NOAA– proposed rule does not duplicate, (3) If sent electronically, the Government NMFS–2019–0087, by any of the overlap, or conflict with any other either— following methods: Federal rules. There are no known (i) Posts a copy of the delivery order or task • Electronic Submissions: Submit all significant alternative approaches to the order to a Government document access electronic public comments via the proposed rule that would meet the system, and notice is sent to the Contractor; Federal e-Rulemaking Portal. Go to proposed objectives. or www.regulations.gov/ The Regulatory Secretariat has (ii) Distributes the delivery order or task #!docketDetail;D=NOAA-NMFS-2019- order via email to the Contractor’s email submitted a copy of the IRFA to the address. 0087, click the ‘‘Comment Now!’’ icon, Chief Counsel for Advocacy of the Small (d) Orders may be issued by methods other complete the required fields, and enter Business Administration. A copy of the than those enumerated in this clause only if or attach your comments. IRFA may be obtained from the authorized in the contract. • Mail: Submit written comments to Regulatory Secretariat. DoD, GSA, and Lynn Massey, Sustainable Fisheries (End of clause) NASA invite comments from small Division, West Coast Region, NMFS, 501 business concerns and other interested [FR Doc. 2019–18141 Filed 8–22–19; 8:45 am] W Ocean Blvd., Ste. 4200, Long Beach, parties on the expected impact of this BILLING CODE 6820–EP–P CA 90802–4250. rule on small entities. • Instructions: Comments must be DoD, GSA, and NASA will also submitted by one of the above methods consider comments from small entities DEPARTMENT OF COMMERCE to ensure that the comments are concerning the existing regulations in received, documented, and considered subparts affected by this rule consistent National Oceanic and Atmospheric by NMFS. Comments sent by any other with 5 U.S.C. 610. Interested parties Administration method, to any other address or must submit such comments separately individual, or received after the end of and should cite 5 U.S.C. 610 (FAR Case 50 CFR Part 660 the comment period, may not be 2018–022) in correspondence. [Docket No. 190816–0016] considered. All comments received are a part of the public record and will VII. Paperwork Reduction Act RIN 0648–BJ22 generally be posted for public viewing The rule does not contain any Fisheries Off West Coast States; on www.regulations.gov without change. information collection requirements that Coastal Pelagic Species Fisheries; All personal identifying information require the approval of the Office of Biennial Specifications (e.g., name, address, etc.) submitted Management and Budget under the voluntarily by the sender will be Paperwork Reduction Act (44 U.S.C. AGENCY: National Marine Fisheries publicly accessible. Do not submit chapter 35). Service (NMFS), National Oceanic and confidential business information, or Atmospheric Administration (NOAA), otherwise sensitive or protected List of Subjects in 48 CFR Part 52 Commerce. information. NMFS will accept Government procurement. ACTION: Proposed rule. anonymous comments (enter ‘‘N/A’’ in William F. Clark, the required fields if you wish to remain SUMMARY: NMFS proposes to implement anonymous). Director, Office of Government-wide allowable catch levels, an overfishing Copies of the report, ‘‘Pacific Acquisition Policy, Office of Acquisition limit, an allowable biological catch, and Policy, Office of Government-wide Policy. Mackerel Stock Assessment for U.S. an annual catch limit for Pacific Management in 2019–2020 and 2020– Therefore, DoD, GSA, and NASA mackerel in the U.S. exclusive economic 2021’’ may obtained from the Long propose amending 48 CFR part 52 as set zone off the West Coast (California, Beach NMFS office or viewed at the forth below: Oregon and Washington) for the fishing following website: https:// seasons 2019–2020 and 2020–2021. This www.pcouncil.org/wpcontent/uploads/ PART 52—SOLICITATION PROVISIONS rule is proposed pursuant to the Coastal 2019/05/F3_Att1_Mackerel_Stock- AND CONTRACT CLAUSES Pelagic Species Fishery Management Assessment_Full_Electric_Only_ Plan. The proposed harvest guideline Jun2019BB.pdf. ■ 1. The authority citation for 48 CFR and annual catch target for the 2019– part 52 continues to read as follows: 2020 fishing season are 11,109 metric FOR FURTHER INFORMATION CONTACT: Authority: 40 U.S.C. 121(c); 10 U.S.C. tons (mt) and 10,109 mt, respectively. Lynn Massey, West Coast Region, chapter 137; and 51 U.S.C. 20113. The proposed harvest guideline and NMFS, [email protected]. SUPPLEMENTARY INFORMATION: Under the ■ 2. Amend section 52.216–18 by— annual catch target for the 2020–2021 Magnuson-Stevens Fishery ■ a. Revising the date of the clause; fishing season are 7,950 mt and 6,950 Conservation and Management Act ■ b. Revising paragraph (c); and mt, respectively. If the fishery attains (Magnuson-Stevens Act), 16 U.S.C. 1801 ■ c. Adding paragraph (d). the annual catch target in either fishing et seq., NMFS manages the Pacific The revisions and additions reads as season, the directed fishery will close, mackerel fishery in the U.S. exclusive follows: reserving the 1,000-mt difference between the harvest guideline and economic zone (EEZ) off the West Coast 52.216–18 Ordering. annual catch target as a set-aside for in accordance with the Coastal Pelagic * * * * * incidental landings in other Coastal Species (CPS) Fishery Management Plan Pelagic Species fisheries and other (FMP). The CPS FMP and its Ordering (Date) sources of mortality. This rule is implementing regulations require NMFS * * * * * intended to conserve and manage the to set annual harvest specifications for (c) A delivery order or task order is Pacific mackerel stock off the U.S. West the Pacific mackerel fishery based on considered ‘‘issued’’ when— Coast. the annual specification framework and

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control rules in the FMP. The Pacific 71,099 metric tons (mt). The estimated constrained to a 45-percent incidental mackerel fishing season runs from July stock biomass of Pacific mackerel for the catch allowance (in other words, no 1 to June 30. The purpose of this 2020–2021 management season 56,058 more than 45 percent by weight of the proposed rule is to implement these mt. CPS landed per trip may be Pacific harvest specifications, which include 2. Cutoff. This is the biomass level mackerel); in non-CPS fisheries, up to 3 allowable harvest levels (i.e., annual below which no commercial fishery is mt of Pacific mackerel may be landed catch target (ACT) and harvest guideline allowed. The FMP established this level incidentally per fishing trip. The (HG)), an annual catch limit (ACL), and at 18,200 mt. incidental set-aside is intended to allow annual catch reference points (i.e., 3. Fraction. The harvest fraction is the continued operation of fisheries for overfishing limit (OFL) and acceptable percentage of the biomass above 18,200 other stocks, particularly other CPS biological catch (ABC)). The uncertainty mt that may be harvested. This is set in stocks that may school with Pacific surrounding the current biomass the FMP at 30 percent. mackerel. estimates for Pacific mackerel for the 4. Distribution. Pacific mackerel range The NMFS West Coast Regional 2019–2020 and 2020–2021 fishing from Mexico to Alaska and regularly Administrator will publish a notice in seasons was taken into consideration in migrate between Mexico and the U.S the Federal Register announcing the the development of these harvest West Coast. Because some of the Pacific date of any closure of directed fishing specifications. Any Pacific mackerel mackerel stock exists outside of U.S. (when harvest levels reach or exceed the harvested between July 1, 2019, and the waters, the Distribution parameter is ACT). Additionally, to ensure the effective date of the final rule would used to estimate the proportion of the regulated community is informed of any count toward the 2019–2020 ACT and total biomass in U.S. waters and to closure, NMFS will also make HG. calculate U.S. catch limits. The average announcements through other means During public meetings each year, the portion of the total Pacific mackerel available, including email to fishermen, NMFS Southwest Fisheries Science biomass estimated in the West Coast processors, and state fishery Center (SWFSC) presents biomass U.S. EEZ is set in the FMP at 70 percent. management agencies. estimates for Pacific mackerel to the The 70 percent distribution estimate is Classification Pacific Fishery Management Council’s based on the average historical larval (Council) CPS Management Team distribution obtained from scientific Pursuant to section 304(b)(1)(A) of the (CPSMT), the Council’s CPS Advisory cruises and the distribution of the Magnuson-Stevens Act, the NMFS Subpanel (CPSAS) and the Council’s resource according to the logbooks of Assistant Administrator has determined Scientific and Statistical Committee aerial fish-spotters. that this proposed rule is consistent (SSC), and the biomass estimates and The Council has recommended and with the CPS FMP, other provisions of the status of the fisheries are reviewed NMFS is proposing, Pacific mackerel the Magnuson-Stevens Act, and other and discussed. The CPSMT, CPSAS, harvest specifications for both the 2019– applicable law, subject to further and SSC then provide recommendations 2020 and 2020–2021 fishing seasons. consideration after public comment. and comments to the Council regarding For the 2019–2020 Pacific mackerel This proposed rule has been the calculated OFL, ABC, ACL, HG and fishing season these include an OFL of determined to be not significant for ACT. Following Council review and 14,931 mt, an ABC and ACL of 13,169 purposes of Executive Order 12866. after hearing public comment, the mt, a HG of 11,109 mt, and an annual The Chief Counsel for Regulation of Council adopts biomass estimates and ACT of 10,109 mt. For the 2020–2021 the Department of Commerce certified makes its harvest specification Pacific mackerel fishing season these to the Chief Counsel for Advocacy of the recommendations to NMFS. Biennial include an OFL of 11,772 mt, and ABC Small Business Administration that this specifications published in the Federal and ACL of 10,289 mt, a HG of 7,950 mt, proposed rule, if adopted, would not Register establish these allowable and an ACT of 6,950 mt. These catch have a significant economic impact on harvest levels (i.e., ACT/HG) as well as specifications are based on the control a substantial number of small entities, OFL, ABC, and ACL for the upcoming rules established in the CPS FMP and for the following reasons: 2 Pacific mackerel fishing seasons. biomass estimates of 71,099 mt (2019– For Regulatory Flexibility Act (RFA) The control rules in the CPS FMP 2020) and 56,058 mt (2020–2021). The purposes only, NMFS has established a include the HG control rule, which, in biomass estimates are the result of a full small business size standard for conjunction with the OFL and ABC stock assessment the NMFS SWFSC businesses, including their affiliates, rules, are used to manage harvest levels completed in June 2019 (see whose primary industry is commercial fishing (see 50 CFR 200.2). A business for Pacific mackerel. According to the ADDRESSES). The Council’s SSC and the FMP, the quota for the principal Council approved this stock assessment primarily engaged in commercial fishing commercial fishery, the HG, is as the best scientific information (NAICS code 11411) is classified as a determined using the FMP-specified HG available for management at the June small business if it is independently formula. The HG is based, in large part, 2019 Council meeting. owned and operated, is not dominant in on the current estimate of stock Under this proposed action, in the its field of operation (including its biomass. The biomass estimate is an unlikely event that catch reaches the affiliates), and has combined annual explicit part of the various harvest ACT in either fishing season, directed receipts not in excess of $11 million for control rules for Pacific mackerel, and fishing would close, reserving the all its affiliated operations worldwide. Pacific mackerel are principally as the estimated biomass decreases or difference between the HG and ACT caught off southern California within increases from one year to the next, the (1,000 mt) as a set-aside for incidental the limited entry portion (south of 39 resulting allowable catch levels landings in other fisheries and other degrees N latitude; Point Arena, similarly trend. The harvest control rule sources of mortality.1 For the remainder California) of the CPS fishery and is one in the CPS FMP is HG = [(Biomass- of the fishing season, incidental component of CPS fisheries off the U.S. Cutoff) * Fraction * Distribution] with landings in CPS fisheries would be the parameters described as follows: West Coast, which also includes the 1. Biomass. The estimated stock 1 Directed fishing for live bait and minor directed fisheries for Pacific sardine, northern biomass of Pacific mackerel for the fishing is allowed to continue during a closure of anchovy and market squid. The small 2019–2020 management season is the directed fishery. entities that would be affected by the

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proposed action are those vessels that ACTs proposed in this rule will limit Authority: 16 U.S.C. 1801 et seq., 16 harvest Pacific mackerel as part of the harvests, and therefore the potential U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq. West Coast CPS purse seine fleet and are profitability to the fleet from catching ■ all considered small business under the Pacific mackerel is expected to be 2. In § 660.511, add paragraphs (i) and above size standards. Currently there are unchanged compared to last season. (j) to read as follows: 58 vessels permitted in the Federal CPS Additionally, annual average landings § 660.511 Catch restrictions. limited entry fishery off California. The during the last nine of the ten average annual per vessel revenue in management years have not been * * * * * 2018 for those vessels was well below restricted by the applicable quota. (i) The following harvest the threshold level of $11 million; Accordingly, vessel income from fishing specifications apply for Pacific therefore, all of these vessels are is not expected to be altered as a result mackerel: considered a small businesses under the of this rule as it compares to recent (1) For the Pacific mackerel fishing RFA. Therefore, this rule would not catches in the fishery, including under season July 1, 2019, through June 30, create disproportionate costs between the previous season’s regulations. 2020, the harvest guideline is 11,109 mt small and large vessels/businesses. Based on the disproportionality and NMFS used the ex-vessel revenue profitability analysis above, the and the ACT is 10,109 mt; and information for a profitability analysis, proposed action, if adopted, will not (2) For the Pacific mackerel fishing as the cost data for the harvesting have adverse or disproportional season July 1, 2020, through June 30, operations of CPS finfish vessels was economic impact on these small 2021, the harvest guideline is 7,950 mt limited or unavailable. For the 2017– business entities. As a result, an Initial and the ACT of 6,950 mt. 2018 fishing season, the HG was 26,293 Regulatory Flexibility Analysis is not (j) When an ACT in paragraph (i) of mt and was divided into an ACT of required, and none has been prepared. this section has been reached or 25,293 mt and an incidental set-aside of This action does not contain a 1,000 mt. Approximately 1,434 mt of collection-of-information requirement exceeded, then for the remainder of the Pacific mackerel was harvested in the for purposes of the Paperwork Pacific mackerel fishing season, Pacific 2017–2018 fishing season with an Reduction Act. mackerel may not be targeted and landings of Pacific mackerel may not estimated ex-vessel value of List of Subjects in 50 CFR Part 660 approximately $482,656. exceed: 45 percent of landings when The HG for the 2019–2020 Pacific Fisheries, Fishing, Reporting and Pacific mackerel are landed in CPS mackerel fishing season is 11,109 mt, recordkeeping requirements. fisheries (in other words, no more than with an ACT of 10,109 mt and an Dated: August 19, 2019. 45 percent by weight of the CPS landed incidental set-aside of 1,000 mt. The HG Alan D. Risenhoover, per trip may be Pacific mackerel), or up for the 2020–2021 Pacific mackerel Acting Deputy Assistant Administrator for to 3 mt of Pacific mackerel when landed fishing season is 7,950 mt with an ACT Regulatory Programs, National Marine in non-CPS fisheries. The Regional of 6,950 mt and an incidental set-aside Fisheries Service. Administer shall announce in the of 1,000 mt. The proposed ACTs for For the reasons set out in the Federal Register the date that an ACT these fishing seasons are substantially preamble, 50 CFR part 660 is proposed is reached or exceeded, and the date and lower than the prior 2 fishing seasons to be amended as follows: time that the restrictions described in (i.e., 25,293 mt for 2017–2018 and this paragraph go into effect. 22,840 mt for 2018–2019), however PART 660—FISHERIES OFF WEST [FR Doc. 2019–18165 Filed 8–22–19; 8:45 am] Pacific mackerel landings in the U.S. COAST STATES over the last 10 fishing seasons (2008– BILLING CODE 3510–22–P 2018) have averaged only ∼4,300 mt. ■ 1. The authority citation for part 660 Therefore it is highly unlikely that the continues to read as follows:

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Notices Federal Register Vol. 84, No. 164

Friday, August 23, 2019

This section of the FEDERAL REGISTER number and the agency informs ACTION: Notice of proposed new fee contains documents other than rules or potential persons who are to respond to sites. proposed rules that are applicable to the the collection of information that such public. Notices of hearings and investigations, persons are not required to respond to SUMMARY: The National Forests in North committee meetings, agency decisions and the collection of information unless it Carolina is proposing to charge new fees rulings, delegations of authority, filing of at two recreation sites. All sites have petitions and applications and agency displays a currently valid OMB control number. recently been reconstructed or statements of organization and functions are improvements are being added to examples of documents appearing in this Food Safety and Inspection Service enhance services and experiences. Fees section. Title: Accredited Laboratory Annual are assessed based on the level of Contact Update Form. amenities and services provided, cost of DEPARTMENT OF AGRICULTURE OMB Control Number: 0583–0163. operation and maintenance, market Summary of Collection: The Food assessment, and public comment. Funds Submission for OMB Review; Safety and Inspection Service (FSIS) has from fees would be used for the Comment Request been delegated the authority to exercise continued operation and maintenance of the functions of the Secretary as these recreation sites. August 20, 2019. provided in the Federal Meat Inspection DATES: Send any comments about these The Department of Agriculture has Act (FMIA) (21 U. S.C. 601 et seq.), the fee proposals by September 25, 2019, submitted the following information Poultry Products Inspection Act (PPIA) comments will be compiled, analyzed collection requirement(s) to OMB for (21 U.S.C. 451, et seq.), and the Egg and shared with the Recreation review and clearance under the Products Inspection Act (EPIA) (21 Resource Advisory Committee. New fees Paperwork Reduction Act of 1995, U.S.C. 1031). These statues mandate would begin after January 1, 2020. Public Law 104–13. Comments are that FSIS protect the public by verifying ADDRESSES: Written comments requested regarding whether the that meat and poultry products are safe, concerning this notice should be collection of information is necessary wholesome, not adulterated, and addressed to ATTN: Recreation Fee for the proper performance of the properly labeled and packaged. Proposals, National Forests in North functions of the agency, including Need and Use of the Information: Carolina, 160A Zillicoa Street, whether the information will have FSIS will collect information using the Asheville, NC 28801. practical utility; the accuracy of the Annual Contact Update form to FOR FURTHER INFORMATION CONTACT: agency’s estimate of burden including maintain necessary information for Logan Free, Recreation Fee Coordinator, the validity of the methodology and responsible connected personnel at the 828–257–4256, NFsNCfeeproposals@ assumptions used; ways to enhance the laboratories. FSIS uses the collected fs.fed.us. Information about proposed quality, utility and clarity of the information to ensure that all meat and fee changes can also be found on the information to be collected; and ways to poultry establishments produce safe, National Forests in North Carolina minimize the burden of the collection of wholesome, and unadulterated product, information on those who are to website: https://fs.usda.gov/goto/nfsnc/ and that non-federal laboratories accord recfeeproposal. respond, including through the use of with FSIS regulations. The completed SUPPLEMENTARY INFORMATION: The appropriate automated, electronic, Annual Contact Update form will also mechanical, or other technological Federal Recreation Lands Enhancement inform the Agency if a laboratory, or collection techniques or other forms of Act (Title VII, Pub. L. 108–447) directed responsibly connected person or entity, information technology. the Secretary of Agriculture to publish has been charged, indicted, or convicted Comments regarding this information a six month advance notice in the or any crime. collection received by September 23, Federal Register whenever new Description of Respondents: Business 2019 will be considered. Written recreation fee areas are established. or other for-profit. comments should be addressed to: Desk Number of Respondents: 60. Sites that are proposed for new fees Officer for Agriculture, Office of Frequency of Responses: Reporting: include: Kings Mountain Point Information and Regulatory Affairs, Annually. proposed at $5 per vehicle or $30 for an Office of Management and Budget Total Burden Hours: 15. annual pass, and Yates Place Camp (OMB), New Executive Office Building, proposed at $10 per site on the 725—17th Street NW, Washington, DC Ruth Brown, Uwharrie National Forest. Proposed fees 20502. Commenters are encouraged to Departmental Information Collection at these recreation sites will be invested submit their comments to OMB via Clearance Officer. in site improvements that address email to: OIRA_Submission@ [FR Doc. 2019–18193 Filed 8–22–19; 8:45 am] sanitation and visitor safety, improve OMB.EOP.GOV or fax (202) 395–5806 BILLING CODE 3410–DM–P visitor comfort and convenience, reduce and to Departmental Clearance Office, deferred maintenance, and enhance the USDA, OCIO, Mail Stop 7602, overall recreation experiences of the Washington, DC 20250–7602. Copies of DEPARTMENT OF AGRICULTURE public. These new fees are part of a the submission(s) may be obtained by larger fee proposal available for review calling (202) 720–8958. Forest Service at https://fs.usda.gov/goto/nfsnc/ An agency may not conduct or Proposed New Fee Sites: The National recfeeproposal. sponsor a collection of information Forests in North Carolina Once public involvement is complete, unless the collection of information these new fees will be reviewed by the displays a currently valid OMB control AGENCY: Forest Service, USDA. Southern Region Recreation Resource

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Advisory Committee prior to a final National Forest, Supervisor’s Office. on Civil Rights (Commission) and the decision and implementation. Please call ahead at 406–758–5200 to Federal Advisory Committee Act that Dated: August 1, 2019. facilitate entry into the building. the Arkansas Advisory Committee (Committee) will hold a meeting on Richard A. Cooksey, FOR FURTHER INFORMATION CONTACT: Meghan Mulholland, RAC Coordinator, Wednesday, August 28, 2019 at 12:00 Acting Associate Deputy Chief, National p.m. Central time. The Committee will Forest System. by phone at 406–758–5252 or via email discuss next steps in their study of civil [FR Doc. 2019–18198 Filed 8–22–19; 8:45 am] at [email protected]. Individuals who use rights and mass incarceration in the BILLING CODE 3411–15–P telecommunication devices for the deaf state. (TDD) may call the Federal Information DATES: The meeting will take place on DEPARTMENT OF AGRICULTURE Relay Service (FIRS) at 1–800–877–8339 Wednesday, August 28, 2019 at 12:00 between 8:00 a.m. and 8:00 p.m., p.m. Central time. Forest Service Eastern Standard Time, Monday FOR FURTHER INFORMATION CONTACT: through Friday. Melissa Wojnaroski, DFO, at Flathead Resource Advisory SUPPLEMENTARY INFORMATION: The [email protected] or 312–353– Committee; Meeting purpose of the meeting is to discuss, 8311. AGENCY: Forest Service, USDA. recommend, and approve new Title II SUPPLEMENTARY INFORMATION: projects. ACTION: Notice of meeting. Public Call Information: Dial: 800– The meeting is open to the public. 353–6461, Conference ID: 6277739. SUMMARY: The Flathead Resource The agenda will include time for people Members of the public can listen to Advisory Committee (RAC) will meet in to make oral statements of three minutes these discussions. These meetings are Kalispell, Montana. The committee is or less. Individuals wishing to make an available to the public through the authorized under the Secure Rural oral statement should request in writing above call in numbers. Any interested Schools and Community Self- by Friday, September 13, 2019, to be member of the public may call this Determination Act (the Act) and scheduled on the agenda. Anyone who number and listen to the meeting. An operates in compliance with the Federal would like to bring related matters to open comment period will be provided Advisory Committee Act. The purpose the attention of the committee may file to allow members of the public to make of the committee is to improve written statements with the committee a statement as time allows. The collaborative relationships and to staff before or after the meeting. Written conference call operator will ask callers provide advice and recommendations to comments and requests for time for oral to identify themselves, the organization the Forest Service concerning projects comments must be sent to Meghan they are affiliated with (if any), and an and funding consistent with Title II of Mulholland, RAC Coordinator, 650 email address prior to placing callers the Act. RAC information can be found Wolfpack Way, Kalispell, MT 59901, by into the conference room. Callers can at the following website: https:// email to [email protected], expect to incur regular charges for calls www.fs.usda.gov/main/flathead/ or via facsimile to 406–758–5379. they initiate over wireless lines, workingtogether/advisorycommittees. Meeting Accommodations: If you are according to their wireless plan. The DATES: The meetings will be held on the a person requiring reasonable Commission will not refund any following dates: accommodation, please make requests incurred charges. Callers will incur no • Monday, September 20, 2019, at in advance for sign language charge for calls they initiate over land- 4:00 p.m.; interpreting, assistive listening devices, line connections to the toll-free • Tuesday, October 1, 2019, at 4:00 or other reasonable accommodation. For telephone number. Persons with hearing p.m.; access to the facility or proceedings, impairments may also follow the • Thursday, October 3, 2019, at 4:00 please contact Meghan Mulholland, proceedings by first calling the Federal p.m.; RAC Coordinator, by phone at 406–758– Relay Service at 1–800–877–8339 and • Monday, October 7, 2019, at 4:00 5252 or via email at providing the Service with the p.m.; [email protected]. All conference call number and conference • Tuesday, October 8, 2019, at 4:00 reasonable accommodation requests are ID number. p.m.; and managed on a case by case basis. Members of the public are also • Thursday, October 10, 2019, at 4:00 Dated: July 31, 2019. entitled to submit written comments; p.m. Cikena Reid, the comments must be received in the All RAC meetings are subject to USDA Committee Management Officer. regional office within 30 days following cancellation. For status of the meetings the meeting. Written comments may be prior to attendance, please contact [FR Doc. 2019–18200 Filed 8–22–19; 8:45 am] mailed to the Regional Programs Unit, Meghan Mulholland, RAC Coordinator, BILLING CODE 3411–15–P U.S. Commission on Civil Rights, 230 S by phone at 406–758–5252 or via email Dearborn, Suite 2120, Chicago, IL at [email protected]. 60604. They may also be faxed to the ADDRESSES: The meetings will be held at COMMISSION ON CIVIL RIGHTS Commission at (312) 353–8324, or the Flathead National Forest, emailed to Corrine Sanders at csanders@ Notice of Public Meetings of the Supervisor’s Office, 650 Wolfpack Way, usccr.gov. Persons who desire Arkansas Advisory Committee to the Kalispell, Montana. additional information may contact the U.S. Commission on Civil Rights Written comments may be submitted Regional Programs Unit at (312) 353– as described under SUPPLEMENTARY AGENCY: U.S. Commission on Civil 8311. INFORMATION. All comments, including Rights. Records generated from this meeting names and addresses when provided, ACTION: Announcement of meeting. may be inspected and reproduced at the are placed in the record and are Regional Programs Unit Office, as they available for public inspection and SUMMARY: Notice is hereby given, become available, both before and after copying. The public may inspect pursuant to the provisions of the rules the meeting. Records of the meeting will comments received at the Flathead and regulations of the U.S. Commission be available via www.facadatabase.gov

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under the Commission on Civil Rights, public to make a statement as time DEPARTMENT OF COMMERCE Arkansas Advisory Committee link. allows. The conference call operator Persons interested in the work of this will ask callers to identify themselves, Bureau of Economic Analysis Committee are directed to the the organization they are affiliated with Commission’s website, http:// (if any), and an email address prior to Submission for OMB Review; www.usccr.gov, or may contact the placing callers into the conference Comment Request Regional Programs Unit at the above room. Callers can expect to incur regular The Department of Commerce will email or street address. charges for calls they initiate over submit to the Office of Management and Agenda: wireless lines, according to their Budget (OMB) for clearance the wireless plan. The Commission will not following proposal for collection of Welcome and Roll Call refund any incurred charges. Callers information under the provisions of the Civil Rights in Arkansas: Mass Incarceration will incur no charge for calls they Paperwork Reduction Act (44 U.S.C. Future Plans and Actions initiate over land-line connections to Chapter 35). Public Comment the toll-free telephone number. Persons Agency: Bureau of Economic Analysis Adjournment with hearing impairments may also (BEA), Commerce. Exceptional Circumstance: Pursuant follow the proceedings by first calling Title: Survey of New Foreign Direct to 41 CFR 102–3.150, the notice for this the Federal Relay Service at 1–800–977– Investment in the United States. meeting is given less than 15 calendar 8339 and providing the Service with the OMB Control Number: 0608–0035. days prior to the meeting because of the conference call number and conference Form Number: BE–13. exceptional circumstances of recovery ID number. Type of Request: Regular submission. from the government shutdown. Members of the public are also Number of Responses: 2,400 annually. Estimated Number of Respondents: Dated: August 19, 2019. entitled to submit written comments; 2,400 annually, of which approximately David Mussatt, the comments must be received in the 600 file A forms, 180 file B forms, 80 file Supervisory Chief, Regional Programs Unit. regional office within 30 days following D forms, 340 file E forms, and 1,200 file the meeting. Written comments may be [FR Doc. 2019–18173 Filed 8–22–19; 8:45 am] Claim for Exemption forms. mailed to the Midwestern Regional BILLING CODE P Estimated Total Annual Burden Office, U.S. Commission on Civil Rights, Hours: 2,547 hours. Total annual burden 230 S Dearborn Street, Suite 2120, is calculated by multiplying the COMMISSION ON CIVIL RIGHTS Chicago, IL 60604. They may also be estimated number of submissions of faxed to the Commission at (312) 353– each form by the average hourly burden Notice of Public Meeting of the 8324 or emailed to David Barreras at Alabama Advisory Committee To per form, which is 2.5 hours for the A [email protected]. Persons who form, 2.2 hours for the B form, 1.2 hours Discuss Civil Rights Topics in the desire additional information may State for the D form, 0.75 hours for the E contact the Midwestern Regional Office form, and 0.25 hours for the Claim for AGENCY: U.S. Commission on Civil at (312) 353–8311. Exemption form. Rights. Records generated from this meeting Estimated Time per Respondent: 1.1 ACTION: Announcement of meeting. may be inspected and reproduced at the hours per respondent (2,547 hours/ Midwestern Regional Office, as they 2,400 respondents) is the average but SUMMARY: Notice is hereby given, become available, both before and after may vary among respondents because of pursuant to the provisions of the rules the meeting. Records of the meeting will differences in company size and and regulations of the U.S. Commission be available via www.facadatabase.gov complexity. on Civil Rights (Commission) and the under the Commission on Civil Rights, Needs and Uses: The Survey of New Federal Advisory Committee Act that Alabama Advisory Committee link Foreign Direct Investment in the United the Alabama Advisory Committee (https://www.facadatabase.gov/FACA/ States (BE–13) collects information on (Committee) will hold a meeting on FACAPublicCommittee?id=a10t0000001 the acquisition and establishment of Tuesday, September 3, and Tuesday, gzlLAAQ). Persons interested in the U.S. business enterprises by foreign September 10, 2019, at 2 p.m. (Central) work of this Committee are directed to investors and on expansions by existing for the purpose discussing civil rights the Commission’s website, http:// U.S. affiliates of foreign companies. The topics in the state. www.usccr.gov, or may contact the data collected on the survey are used to DATES: The meeting will be held on Midwestern Regional Office at the above measure the amount of new foreign Tuesday, September 3, and Tuesday, email or street address. direct investment in the United States, September 10, 2019, at 2 p.m. (Central). assess the impact on the U.S. economy, Public Call Information: Dial: 206– Agenda and ensure complete coverage of BEA’s 800–4892, Conference ID: 514210608. Welcome and Roll Call other foreign direct investment FOR FURTHER INFORMATION CONTACT: statistics. This mandatory BE–13 survey David Barreras, DFO, at dbarreras@ Discussion of Barriers to Voting Report is required from business enterprises usccr.gov or 312–353–8311. Discussion of Next Topics for Study subject to the reporting requirements, SUPPLEMENTARY INFORMATION: Members Next Steps whether or not they are contacted by of the public can listen to the BEA. Business enterprises contacted by discussion. This meeting is available to Public Comment BEA that do not meet the reporting the public through the following toll- Adjournment requirements are required to respond to free call-in number: 206–800–4892, Dated: August 19, 2019. indicate that they do not meet the conference ID: 514210608. Any requirements. interested member of the public may David Mussatt, Affected Public: Businesses or other call this number and listen to the Supervisory Chief, Regional Programs Unit. for-profit organizations. meeting. An open comment period will [FR Doc. 2019–18168 Filed 8–22–19; 8:45 am] Frequency: Forms BE–13A, BE–13B, be provided to allow members of the BILLING CODE P BE–13D, and BE–13 Claim for

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Exemption are filed once for a new Yvette Springer at Yvette.Springer@ International Trade Administration, investment. Form BE–13 E is filed bis.doc.gov no later than September 10, U.S. Department of Commerce, 1401 annually until the establishment or 2019. Constitution Avenue NW, Washington, expansion of the business enterprise is The Assistant Secretary for DC 20230; telephone: (202) 482–2057. complete. Administration, with the concurrence of Background Respondent’s Obligation: Mandatory. the delegate of the General Counsel, This information collection request formally determined on May 21, 2019, On March 5, 2019, Commerce may be viewed at www.reginfo.gov. pursuant to Section 10(d) of the Federal published in the Federal Register a Follow the instructions to view Advisory Committee Act, as amended (5 notice of opportunity to request an Department of Commerce collections U.S.C. app. 2 § 10(d)), that the portion administrative review of the currently under review by OMB. of the meeting dealing with pre- antidumping duty order on silica fabric Written comments and decisional changes to the Commerce from China for the period of review recommendations for the proposed Control List and the U.S. export control covering March 1, 2018, through information collection should be sent policies shall be exempt from the February 28, 2019.1 On April 1, 2019, within 30 days of publication of this provisions relating to public meetings Auburn Manufacturing, Inc. (AMI), a notice to OIRA at Submission@ found in 5 U.S.C. app. 2 § § 10(a)(1) and domestic producer of silica fabric, omb.eop.gov or fax to (202) 395–5806. 10(a)(3). The remaining portions of the timely filed a request for review, in Sheleen Dumas, meeting will be open to the public. accordance with section 751(a) of the A limited number of seats will be Tariff Act of 1930, as amended (the Act), Departmental Lead PRA Officer, Office of the 2 Chief Information Officer, Commerce available for the public session. and 19 CFR 351.213(b). Pursuant to Department. Reservations are not accepted. To the this request, and in accordance with section 751(a) of the Act and 19 CFR [FR Doc. 2019–18228 Filed 8–22–19; 8:45 am] extent that time permits, members of the 351.221(c)(1)(i), we initiated an BILLING CODE 3510–06–P public may present oral statements to the Committee. The public may submit administrative review of 81 companies.3 written statements at any time before or On July 8, 2019, AMI timely filed a DEPARTMENT OF COMMERCE after the meeting. However, to facilitate withdrawal of its request for the the distribution of public presentation administrative review of all 81 Bureau of Industry and Security materials to the Committee members, companies.4 the Committee suggests that presenters Rescission of Review Regulations and Procedures Technical forward the public presentation Advisory Committee; Notice of materials prior to the meeting to Ms. Pursuant to 19 CFR 351.213(d)(1), the Partially Closed Meeting Springer via email. Secretary will rescind an administrative review, in whole or in part, if the party The Regulations and Procedures For more information, call Yvette Springer at (202) 482–2813. that requested the review withdraws the Technical Advisory Committee (RPTAC) request within 90 days of the date of will meet September 17, 2019, 9:00 a.m., Yvette Springer, publication of the notice of initiation of Room 3884, in the Herbert C. Hoover Committee Liaison Officer. the requested review. As noted above, Building, 14th Street between [FR Doc. 2019–18223 Filed 8–22–19; 8:45 am] AMI, the only party to file a request for Constitution and Pennsylvania Avenues BILLING CODE 3510–JT–P review, withdrew this request by the 90- NW, Washington, DC. The Committee day deadline. Accordingly, we are advises the Office of the Assistant rescinding the administrative review of Secretary for Export Administration on DEPARTMENT OF COMMERCE the antidumping duty order on silica implementation of the Export fabric from China covering March 1, Administration Regulations (EAR) and International Trade Administration 2018, through February 28, 2019, in its provides for continuing review to entirety. update the EAR as needed. [A–570–038] Assessment Agenda Certain Amorphous Silica Fabric From the People’s Republic of China: Commerce will instruct U.S. Customs Public Session Rescission of Antidumping Duty and Border Protection (CBP) to assess 1. Opening remarks by the Chairman Administrative Review; 2018–2019 antidumping duties on all appropriate 2. Opening remarks by the Bureau of entries of silica fabric from China. Industry and Security AGENCY: Enforcement and Compliance, Antidumping duties shall be assessed at 3. Presentation of papers or comments International Trade Administration, by the Public Department of Commerce. 1 See Antidumping or Countervailing Duty Order, 4. Export Enforcement update SUMMARY: The Department of Commerce Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 84 FR 7877 5. Regulations update (Commerce) is rescinding the 6. Working group reports (March 5, 2019). administrative review of the 2 See AMI’s Letter, ‘‘Certain Amorphous Silica 7. Automated Export System update antidumping duty order on certain Fabric from the People’s Republic of China,’’ dated Closed Session amorphous silica fabric (silica fabric) April 1, 2019. from the People’s Republic of China 3 See Initiation of Antidumping and 8. Discussion of matters determined to Countervailing Duty Administrative Reviews, 84 FR (China) for the period March 1, 2018, be exempt from the provisions 24743 (May 29, 2019). Commerce published a through February 28, 2019, based on the relating to public meetings found in correction to five companies’ names in July. See timely withdrawal of the request for Initiation of Antidumping and Countervailing Duty 5 U.S.C. app. 2 §§ 10(a)(1) and review. Administrative Reviews, 84 FR 33739 (July 15, 10(a)(3). 2019). The open session will be accessible DATES: Applicable August 23, 2019. 4 See AMI’s Letter, ‘‘Certain Amorphous Silica FOR FURTHER INFORMATION CONTACT: Fabric from the People’s Republic of China: via teleconference to 25 participants on Julie Withdrawal of Petitioners’ Request for a first come, first serve basis. To join the Geiger, AD/CVD Operations, Office VI, Administrative Review of the Antidumping Duty conference, submit inquiries to Ms. Enforcement and Compliance, Order,’’ dated July 8, 2019.

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rates equal to the cash deposit of antidumping duty (AD) order on fine Initiation estimated antidumping duties required denier polyester staple fiber (PSF) from Pursuant to section 751(b)(1) of the at the time of entry, or withdrawal from the Republic of Korea (Korea) and Tariff Act of 1930, as amended (the Act), warehouse, for consumption, in simultaneously issuing preliminary and 19 CFR 351.216(d), Commerce will accordance with 19 CFR results finding Toray Advanced conduct a CCR upon receipt of 351.212(c)(1)(i). Commerce intends to Materials Korea, Inc. (TAK) to be the information or a review request showing issue appropriate assessment successor-in-interest to Toray Chemical changed circumstances sufficient to instructions to CBP 15 days after the Korea, Inc. (TCK). warrant a review of an order. Among date of publication of this notice in the DATES: Applicable August 23, 2019. other things, Commerce has conducted Federal Register. FOR FURTHER INFORMATION CONTACT: CCRs to consider the applicability of Notification to Importers Thomas Hanna, AD/CVD Operations, cash deposit rates after there have been Office IV, Enforcement and Compliance, changes in the name or structure of a This notice serves as a reminder to International Trade Administration, company, such as a merger or spinoff importers of their responsibility under U.S. Department of Commerce, 1401 (‘‘successor-in-interest,’’ or 19 CFR 351.402(f)(2) to file a certificate Constitution Avenue NW, Washington, ‘‘successorship,’’ determinations). regarding the reimbursement of DC 20230; telephone: (202) 482–0835. However, pursuant to 19 CFR antidumping duties prior to liquidation SUPPLEMENTARY INFORMATION: 351.216(c), Commerce will not conduct of the relevant entries during this a CCR in a proceeding within 24 months review period. Failure to comply with Background of publication of the notice of final this requirement could result in On July 20, 2018, Commerce determination in that proceeding Commerce’s presumption that published the AD Order on PSF from without good cause. reimbursement of antidumping duties the Republic of Korea in the Federal The final determination that led to the occurred and the subsequent assessment Register.1 TCK was excluded from the AD Order was published on May 30, 7 of doubled antidumping duties. AD Order.2 On May 23, 2019, Commerce 2018. Thus, the CCR request under Notification Regarding Administrative received a request on behalf of TAK for consideration was filed less than 24 Protective Orders an expedited CCR to establish TAK as months after the date of publication of the successor-in-interest to TCK with the notice of final determination in the This notice also serves as a reminder respect to the AD Order.3 On June 17, PSF investigation. However, pursuant to to all parties subject to administrative 2019, Commerce informed TAK that it 19 CFR 351.216(c), we find that good protective order (APO) of their required additional information in order cause exists to initiate this CCR on the responsibility concerning the to determine whether to initiate the grounds of fairness and ease of disposition of proprietary information requested CCR.4 On June 21, 2019, TAK administration. Commerce has found disclosed under APO in accordance provided the requested information.5 good cause on the basis of fairness and with 19 CFR 351.305. Timely written ease of administration in other CCRs notification of the return/destruction of Scope of the AD Order involving ‘‘successor-in-interest.’’ 8 APO materials or conversion to judicial The merchandise covered by the order Moreover, we find the information protective order is hereby requested. is fine denier polyester staple fiber (fine provided is sufficient to warrant a CCR Failure to comply with the regulations denier PSF), not carded or combed, of the AD Order. Specifically, the and terms of an APO is a violation measuring less than 3.3 decitex (3 information TAK provided regarding which is subject to sanction. denier) in diameter. The scope covers TCK’s merger into TAK and the fact that This notice is issued and published in all fine denier PSF, whether coated or TCK was excluded from the AD Order, accordance with sections 751(a)(1) and uncoated. Fine denier PSF is classifiable but TAK is subject to the all-others 777(i)(1) of the Act, and 19 CFR under the HTSUS subheading dumping rate, demonstrates changed 351.213(d)(4). 5503.20.0025. Although the HTSUS circumstances sufficient to warrant a Dated: August 19, 2019. subheadings are provided for CCR with respect to the order. James Maeder, convenience and customs purposes, the Therefore, in accordance with section 751(b)(1) of the Act and 19 CFR Deputy Assistant Secretary for Antidumping written description of the scope of the and Countervailing Duty Operations. order is dispositive.6 Countervailing Duty Centralized Electronic Service [FR Doc. 2019–18190 Filed 8–22–19; 8:45 am] System (ACCESS). The signed and the electronic 1 BILLING CODE 3510–DS–P See Fine Denier Polyester Staple Fiber from the versions of the Preliminary Decision Memorandum People’s Republic of China, India, the Republic of are identical in content. Korea, and Taiwan: Antidumping Duty Orders, 83 7 See Fine Denier Polyester Staple Fiber from the FR 34545 (July 20, 2018) (AD Order). Republic of Korea: Final Affirmative Determination DEPARTMENT OF COMMERCE 2 Id. of Sales at Less Than Fair Value, 83 FR 24743, 3 See TAK’s Letter, ‘‘Changed Circumstances 24744 (May 30, 2018), and accompanying Issues International Trade Administration Review Request’’ (May 23, 2019) (CCR Request). and Decision Memorandum. 4 See Commerce’s Letter to TAK, dated June 17, 8 [A–580–893] See Initiation and Preliminary Results of 2019. Changed Circumstances Reviews: Antidumping 5 See TAK’s Letter, ‘‘Response Regarding Changed Duty Orders on Crystalline Silicon Photovoltaic Initiation and Preliminary Results of Circumstances Review Request’’ (June 21, 2019) Cells, Whether or Not Assembled Into Modules, Changed Circumstances Review: Fine (Response Regarding Changed Circumstances from the People’s Republic of China and Denier Polyester Staple Fiber (PSF) Review Request). Antidumping Duty Order on Certain Crystalline From the Republic of Korea 6 For a complete description of the scope of the Silicon Photovoltaic Products from the People’s AD Order, see Memorandum, ‘‘Initiation and Republic of China, 82 FR 12558 (March 6, 2017), AGENCY: Preliminary Results of Changed Circumstances unchanged in Antidumping Duty Orders on Enforcement and Compliance, Review: Fine Denier Polyester Staple Fiber (PSF) Crystalline Silicon Photovoltaic Cells, Whether or International Trade Administration, from the Republic of Korea,’’ dated concurrently, Not Assembled Into Modules, from the People’s Department of Commerce. with and hereby adopted by, this notice Republic of China and Antidumping Duty Orders SUMMARY: (Preliminary Decision Memorandum). The on Certain Crystalline Silicon Photovoltaic Products The Department of Commerce Preliminary Decision Memorandum is a public from the People’s Republic of China: Final Results (Commerce) is initiating a changed document and is on file electronically via of Changed Circumstances Reviews, 82 FR 17797 circumstances review (CCR) of the Enforcement and Compliance’s Antidumping and (April 13, 2017).

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351.216(d), we are initiating a CCR to facilities,15 suppliers, or customer Dockets Unit in Room 18022 and determine whether TAK is the base.16 Based on the foregoing, which is stamped with the date and time of successor-in-interest to TCK for explained in greater detail in the receipt by 5 p.m. ET on the due date.22 purposes of the AD Order. Preliminary Decision Memorandum, we Consistent with 19 CFR 351.216(e), In addition, Commerce’s regulations preliminarily determine that TAK is the we intend to issue the final results of at 19 CFR 351.221(c)(3)(ii) permit it to successor-in-interest to TCK for this CCR no later than 270 days after the initiate a CCR and issue the preliminary purposes of the AD Order. date on which this review was initiated results of that CCR simultaneously if it Should our final results of review or within 45 days if all parties agree to concludes that expedited action is remain the same as these preliminary the outcome of the review. warranted. We have on the record the results of review, effective the date of Notification to Interested Parties information necessary to make a publication of the final results of preliminary finding and therefore we review, we will instruct U.S. Customs We are issuing and publishing this find that expedited action is warranted.9 and Border Protection to apply TCK’s initiation and preliminary results notice Consequently, we are combining the exclusion from the AD Order to TAK. in accordance with sections 751(b)(1) and 777(i)(1) of the Act and 19 CFR initiation of the CCR described above Public Comment and our preliminary results in 351.216 and 351.221(c)(3). accordance with 19 CFR Interested parties may submit case Dated: August 18, 2019. 351.221(c)(3)(ii). briefs not later than 14 days after the Jeffrey I. Kessler, date of publication of this notice.17 Preliminary Results Assistant Secretary for Enforcement and Rebuttal briefs, which must be limited Compliance. In determining whether one company to issues raised in case briefs, may be [FR Doc. 2019–18148 Filed 8–22–19; 8:45 am] is the successor to another for AD filed not later than seven days after the BILLING CODE 3510–DS–P purposes, Commerce examines a due date for case briefs.18 Parties who number of factors including, but not submit case briefs or rebuttal briefs in limited to, changes in: (1) Management, this CCR are requested to submit with DEPARTMENT OF COMMERCE (2) production facilities, (3) suppliers, each argument: (1) A statement of the and (4) customer base.10 While no one, issues; and (2) a brief summary of the International Trade Administration or several, of these factors will arguments with electronic versions [C–533–874] necessarily provide a dispositive included. indication of succession, Commerce will Any interested party may request a Certain Cold-Drawn Mechanical Tubing generally consider one company to be hearing within 14 days of publication of of Carbon and Alloy Steel From India: the successor to another company if its this notice.19 Hearing requests should Partial Rescission of the resulting operations are essentially the contain the following information: (1) Countervailing Duty Administrative same as those of its predecessor.11 Thus, The party’s name, address, and Review; 2017–2018 if the evidence demonstrates that, with telephone number; (2) the number of AGENCY: Enforcement and Compliance, respect to the production and sale of the participants; and (3) a list of the issues International Trade Administration, subject merchandise, the company, in to be discussed. Oral presentations at Department of Commerce. its current form, operates as essentially the hearing will be limited to issues the same business entity as the prior raised in the briefs. If a request for a SUMMARY: The Department of Commerce company, Commerce will assign the hearing is made, parties will be notified (Commerce) is rescinding the new company the cash deposit rate of of the time and date for the hearing to administrative review in part, of the its predecessor.12 be held at the U.S. Department of countervailing duty (CVD) order on TAK provided evidence 13 that: (1) Commerce, 1401 Constitution Avenue certain cold-drawn mechanical tubing of TCK merged into TAK in April 2019; (2) NW, Washington, DC 20230 in a room carbon and alloy steel (cold-drawn all of TCK’s assets and liabilities were to be determined.20 mechanical tubing) from India covering transferred to TAK, and TCK ceased to All submissions, with limited the September 25, 2017, through exist; and (3) there were no significant exceptions, must be filed electronically December 31, 2018 period of review 21 changes to management,14 production using ACCESS. An electronically filed (POR). document must be received successfully DATES: Applicable August 23, 2019. in its entirety by 5 p.m. Eastern Time 9 See, e.g., Notice of Initiation and Preliminary FOR FURTHER INFORMATION CONTACT: Results of Antidumping Duty Changed (ET) on the due date. Documents Hannah Falvey, AD/CVD Operations, Circumstances Review: Certain Softwood Lumber excepted from the electronic submission Office V, Enforcement and Compliance, Products from Canada, 70 FR 50299, 50300 (August requirements must be filed manually International Trade Administration, 26, 2005), unchanged in Notice of Final Results of (i.e., in paper form) with the APO/ Antidumping Duty Changed Circumstances Review: U.S. Department of Commerce, 1401 Certain Softwood Lumber Products from Canada, 70 Constitution Avenue NW, Washington, 15 FR 59721 (October 13, 2005). See id. at 8 and Exhibit 9. DC 20230; telephone (202) 482–4889. 10 See Initiation and Preliminary Results of 16 See id. at 8–9 and Exhibits 9 and 11. Antidumping Duty Changed Circumstances Review: 17 Commerce is exercising its discretion under 19 Background Multilayered Wood Flooring from the People’s CFR 351.309(c)(1)(ii) to alter the time limit for the Republic of China, 79 FR 48117, 48118 (August 15, filing of case briefs. On February 8, 2019, Commerce 2014), unchanged in Multilayered Wood Flooring 18 Commerce is exercising its discretion under 19 published a notice of opportunity to from the People’s Republic of China: Final Results CFR 351.309(d)(1) to alter the time limit for the request an administrative review of the of Changed Circumstances Review, 79 FR 58740 filing of rebuttal briefs. CVD order on cold-drawn mechanical (September 30, 2014). 19 Commerce is exercising its discretion under 19 11 Id. CFR 351.310(c) to alter the time limit for requesting tubing from India covering the 12 Id.; see also Fresh and Chilled Atlantic Salmon a hearing. September 25, 2017, through December from Norway: Final Results of Changed 20 See 19 CFR 351.310(d). Circumstances Antidumping Administrative 21 ACCESS is available to registered users at 22 See Antidumping and Countervailing Duty Review, 64 FR 9979, 9980 (March 1, 1999). https://access.trade.gov and available to all parties Proceedings: Electronic Filing Procedures; 13 See CCR Request. in the Central Records Unit, Room B8024 of the Administrative Protective Order Procedures, 76 FR 14 Id. main Commerce building. 39263 (July 6, 2011).

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31, 2018 POR.1 On February 28, 2019, Innoventive Industries; ISMT Limited; protective order (APO) of their Commerce received a timely request Jindal (India) Ltd.; Jindal Saw Ltd.; responsibility concerning the return or from ArcelorMittal Tubular Products Pennar Industries, Inc.; Sandvik Asia destruction of proprietary information LLC and Webco Industries, Inc. Pvt., Ltd.; Tata Steel BSL Limited; and disclosed under APO in accordance (collectively, the petitioners) to conduct Tube Products of India.7 No other with 19 CFR 351.305(a)(3), which a CVD administrative review of 13 parties requested a review of these continues to govern business companies.2 On February 28, 2019, companies. proprietary information in this segment Commerce received timely requests of the proceeding. Timely written Rescission in Part from Goodluck India Limited notification of the return/destruction of (Goodluck) and Tube Investments of Pursuant to 19 CFR 351.213(d)(1), APO materials or conversion to judicial India Ltd. (TII) to conduct an Commerce will rescind an protective order is hereby requested. administrative review of the CVD order administrative review, ‘‘in whole or in Failure to comply with the regulations on cold-drawn mechanical tubing from part, if a party that requested the review and terms of an APO is a violation India.3 Based upon these requests, on withdraws the request within 90 days of which is subject to sanction. May 2, 2019, in accordance with section the date of publication of notice of 751(a) of the Tariff Act of 1930, as initiation of the requested review.’’ The Notification to Interested Parties amended (the Act), Commerce petitioners timely withdrew their This notice is issued and published in published a notice of initiation of an request for review of the 11 companies. accordance with section 751(a)(1) and administrative review covering the POR, Because we received no other requests 777(i)(1) of the Tariff Act of 1930, as with respect to the 14 companies for for review of the 11 companies, we are amended, and 19 CFR 351.213(d)(4). 4 which a review was requested. On June rescinding the administrative review, in Dated: August 19, 2019. 18, 2019, we selected Goodluck and TII part, with respect to these 11 James Maeder, as mandatory respondents in this companies, in accordance with 19 CFR administrative review.5 The deadline for Deputy Assistant Secretary for Antidumping 351.213(d)(1). This administrative and Countervailing Duty Operations. a party to withdraw a request for review review will continue with respect to [FR Doc. 2019–18191 Filed 8–22–19; 8:45 am] was July 31, 2019.6 Goodluck and TII.8 BILLING CODE 3510–DS–P Withdrawal of Review Requests Assessment On June 27, 2019, the petitioners Commerce will instruct U.S. Customs DEPARTMENT OF COMMERCE timely withdrew their request for an and Border Protection (CBP) to assess administrative review of 11 companies: countervailing duties on all appropriate International Trade Administration Automotive Steel Pipe; Bhushan Steel entries. For the companies for which Ltd.; Hyundai Steel Pipe India Pvt., Ltd.; this review is rescinded, countervailing [C–570–953] duties shall be assessed at rates equal to 1 See Antidumping or Countervailing Duty Order, the cash deposit of estimated Narrow Woven Ribbons With Woven Finding, or Suspended Investigation; Opportunity Selvedge From the People’s Republic to Request Administrative Review, 84 FR 2816 countervailing duties required at the time of entry, or withdrawal from of China: Preliminary Results of (February 8, 2019). Countervailing Duty Administrative 2 See the petitioners’ Letter, ‘‘Cold-Drawn warehouse, for consumption, in Mechanical Tubing from India—Domestic accordance with 19 CFR Review; 2017 Industry’s Request for 2017–2018 First 351.212(c)(1)(i). Commerce intends to Administrative Review,’’ dated February 28, 2019 AGENCY: Enforcement and Compliance, (Petitioners’ Request for Review). issue appropriate assessment International Trade Administration, 3 See Goodluck’s Letter, ‘‘Certain Cold-Drawn instructions directly to CBP 15 days Department of Commerce. Mechanical Tubing of Carbon and Alloy Steel from after publication of this notice. SUMMARY: India: Request for Countervailing Duty The Department of Commerce Administrative Review,’’ dated February 28, 2019 Notification to Importers (Commerce) preliminarily determines (Goodluck’s Request for Review), see also, TII’s that countervailable subsidies have been This notice serves as a reminder to Letter, ‘‘Cold-Drawn Mechanical Tubing from India: provided to producers and exporters of Request for Administrative Review,’’ dated importers of their responsibility under narrow woven ribbons with woven February 28, 2019 (TII’s Request for Review). 19 CFR 351.402(f)(2) to file a certificate 4 selvedge (ribbons) from the People’s See Initiation of Antidumping and regarding the reimbursement of Countervailing Duty Administrative Reviews, 84 FR Republic of China (China). The period countervailing duties prior to 18777 (May 2, 2019) (Initiation Notice). of review (POR) is January 1, 2017 5 liquidation of the relevant entries See Memorandum, ‘‘Countervailing Duty through December 31, 2017. Interested Administrative Review of Certain Cold-Drawn during this review period. Failure to parties are invited to comment on these Mechanical Tubing of Carbon and Alloy Steel from comply with this requirement could preliminary results. India: Respondent Selection,’’ dated June 18, 2019, result in the presumption that see also, Initiation Notice (we initiated a review of DATES: Effective August 23, 2019. Good Luck India Limited (based on Goodluck’s reimbursement of countervailing duties request) and Good Luck Industries (based on the occurred and the subsequent assessment FOR FURTHER INFORMATION CONTACT: petitioner’s request). In the Respondent Selection of doubled countervailing duties. Terre Keaton Stefanova or Maria Memorandum, we noted that we combined the Tatarska, AD/CVD Operations, Office II, names of companies with minor variations in the Notification Regarding Administrative spelling. Based on the U.S. Customs and Border Enforcement and Compliance, Protection data, the largest exporters were TII and Protective Orders International Trade Administration, ‘‘Good Luck Industries.’’ For respondent selection This notice also serves as a reminder U.S. Department of Commerce, 1401 purposes, we combined Good Luck India Limited Constitution Avenue NW, Washington, and Good Luck Industries together as the same to parties subject to administrative company, and we selected Good Luck India Limited DC 20230; telephone: (202) 482–1280 or as a mandatory respondent. We further note that 7 See the petitioners’ Letter, ‘‘Cold-Drawn (202) 482–1562. these companies have the same address. See Mechanical Tubing from India—Petitioners’ Partial SUPPLEMENTARY INFORMATION: Petitioners’ Request for Review; see also Goodluck’s Withdrawal of Review Request,’’ dated June 27, Request for Review. Therefore, we are continuing 2019. Background our review of Good Luck India Limited and Good 8 As noted supra, our review of Goodluck covers Luck Industries). entities Good Luck India Limited and Good Luck Commerce published the notice of 6 See Initiation Notice. Industries. initiation of this administrative review

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on November 15, 2018.1 Commerce Countervailing Duty Centralized preliminary results by submitting a exercised its discretion to toll all Electronic Service System (ACCESS). written request to the Assistant deadlines affected by the partial federal ACCESS is available to registered users Secretary for Enforcement and government closure from December 22, at http://access.trade.gov, and is Compliance, U.S. Department of 2018 through the resumption of available to all parties in the Central Commerce, using Enforcement and operations on January 28, 2019.2 In June Records Unit, Room B8024 of the main Compliance’s ACCESS system.12 2019, Commerce extended the deadline Department of Commerce building. In Requests should contain the party’s for the preliminary results of this addition, a complete version of the name, address, and telephone number, administrative review until August 9, Preliminary Decision Memorandum can the number of participants, whether any 2019.3 For a complete description of the be accessed directly at https:// participant is a foreign national, and a events that followed the initiation of enforcement.trade.gov/frn/summary/ list of the issues to be discussed. If a this administrative review, see the prc/prc-fr.htm. The signed and request for a hearing is made, we will Preliminary Decision Memorandum.4 electronic versions of the Preliminary inform parties of the scheduled date for Decision Memorandum are identical in Scope of the Order the hearing which will be held at the content. U.S. Department of Commerce, 1401 The products covered by the order are Preliminary Results of the Review Constitution Avenue NW, Washington, narrow woven ribbons with woven DC 20230, at a time and date to be selvedge from China. For a complete As a result of this review, we determined.13 Parties should confirm by description of the scope of this preliminarily determine that the telephone the date, time, and location of administrative review, see the following estimated countervailable the hearing. Preliminary Decision Memorandum.5 subsidy rate exists: Unless the deadline is extended Methodology Subsidy pursuant to section 751(a)(3)(A) of the Commerce is conducting this Company rate Act, we intend to issue the final results countervailing duty (CVD) review in (percent) of this administrative review, including accordance with section 751(a)(1)(A) of the results of our analysis of the issues Yama Ribbons and Bows Co., raised by the parties in their comments, the Tariff Act of 1930, as amended (the Ltd ...... 31.57 Act). For each of the subsidy programs within 120 days after issuance of these preliminary results. found countervailable, Commerce Disclosure preliminarily determines that there is a Assessment Rates subsidy, i.e., a financial contribution by Commerce intends to disclose the an ‘‘authority’’ that gives rise to a calculations and analysis performed in Upon issuance of the final results, benefit to the recipient, and that the connection with these preliminary Commerce shall determine, and U.S. subsidy is specific.6 results to interested parties within five Customs and Border Protection (CBP) For a full description of the days of publication of this notice in the shall assess, countervailing duties on all methodology underlying our Federal Register.8 appropriate entries covered by this preliminary conclusions, including our Verification review. We intend to issue assessment reliance, in part, on adverse facts instructions to CBP 15 days after available pursuant to sections 776(a) As provided in section 782(i)(3) of the publication of the final results of this and (b) of the Act, see the Preliminary Act, Commerce intends to verify the review. Decision Memorandum.7 The information relied upon in making its Cash Deposit Requirements Preliminary Decision Memorandum is a final results. public document and is on file Public Comment Pursuant to section 751(a)(2)(C) of the electronically via Enforcement and Case briefs or other written comments Act, Commerce also intends to instruct Compliance’s Antidumping and may be submitted to the Assistant CBP to collect cash deposits of estimated countervailing duties in the 1 Secretary for Enforcement and See Initiation of Antidumping and Compliance no later than seven days amount indicated above for Yama, on Countervailing Duty Administrative Reviews, 83 FR shipments of subject merchandise 57411 (November 15, 2018). after the date on which Commerce entered, or withdrawn from warehouse, 2 See Memorandum, ‘‘Deadlines Affected by the issues the verification report in this Partial Shutdown of the Federal Government,’’ proceeding.9 Rebuttal briefs, limited to for consumption, on or after the date of dated January 28, 2019. All deadlines in this publication of the final results of segment of the proceeding have been extended by issues raised in case briefs, may be submitted no later than five days after review. For all non-reviewed firms, we 40 days. will instruct CBP to collect cash 3 See Memorandum, ‘‘Narrow Woven Ribbons the deadline for filing case briefs.10 with Woven Selvedge from the People’s Republic of Parties who submit case briefs or deposits of estimated countervailing China: Extension of Deadline for Preliminary rebuttal briefs in this administrative duties at the most recent company- Results of the 2017 Countervailing Duty review are encouraged to submit with specific or all-others rate applicable to Administrative Review,’’ dated June 14, 2019. the company, as appropriate. These cash 4 See Memorandum, ‘‘Decision Memorandum for each argument: (1) A statement of the the Preliminary Results of 2017 Countervailing issue; (2) a brief summary of the deposit requirements, when imposed, Duty Administrative Review: Narrow Woven argument; and (3) a table of shall remain in effect until further Ribbons with Woven Selvedge from the People’s 11 notice. Republic of China,’’ dated concurrently with, and authorities. hereby adopted by, this notice (Preliminary Interested parties who wish to request Notification to Interested Parties Decision Memorandum). a hearing, limited to issues raised in the 5 Id. case and rebuttal briefs, must do so We are issuing and publishing these 6 See sections 771(5)(B) and (D) of the Act within 30 days of publication of these results in accordance with sections regarding financial contribution; section 771(5)(E) 751(a)(1) and 777(i)(1) of the Act, and 19 of the Act regarding benefit; and section 771(5A) of 8 CFR 351.221(b)(4). the Act regarding specificity. See 19 CFR 351.224(b). 7 A list of topics discussed in the Preliminary 9 See 19 CFR 351.309(c)(l)(ii). Decision Memorandum can be found in Appendix 10 See 19 CFR 351.309(d). 12 See 19 CFR 351.310(c). I to this notice. 11 See 19 CFR 351.309(c)(2) and (d)(2). 13 See 19 CFR 351.310.

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Dated: August 5, 2019. 2018.1 Based on requests by interested 245 days.7 Thus, we postponed the Jeffrey I. Kessler, parties, Commerce initiated an preliminary results by 35 days.8 The Assistant Secretary for Enforcement and administrative review on five exporters revised deadline for the preliminary Compliance. of OTR tires.2 On January 31, 2019, we results in this review is now August 16, selected two mandatory respondents for 2019. Appendix I individual examination in this review: For a complete description of the List of Topics Discussed in the Preliminary Triangle Tyre Co. Ltd. (Triangle) and events that followed the initiation of Decision Memorandum Weihai Zhongwei Rubber Co. Ltd. this administrative review, see the I. Summary (Zhongwei).3 Pursuant to timely Preliminary Decision Memorandum.9 II. Background withdrawal of review requests, The Preliminary Decision Memorandum III. Scope of the Order Commerce rescinded the review on is a public document and is on file IV. Diversification of China’s Economy April 11, 2019, with respect to three electronically via Enforcement and V. Use of Facts Otherwise Available and exporters upon which the review was Compliance’s Antidumping and Adverse Inferences Countervailing Duty Centralized VI. Subsidies Valuation initiated, including mandatory 4 VII. Interest Rate Benchmarks, Discount respondent Triangle. Accordingly, this Electronic Service System (ACCESS). Rates, and Inputs administrative review covers one ACCESS is available to registered users VIII. Analysis of Programs mandatory respondent, Zhongwei, and at https://access.trade.gov, and is IX. Conclusion one separate rate respondent Qingdao available to all parties in the Central [FR Doc. 2019–18192 Filed 8–22–19; 8:45 am] Honghua Tyre Factory (Honghua). Records Unit, Room B8024 of the main BILLING CODE 3510–DS–P On January 28, 2019, Commerce Commerce building. In addition, a exercised its discretion to toll all complete version of the Preliminary deadlines affected by the partial federal Decision Memorandum can be accessed DEPARTMENT OF COMMERCE government closure from December 22, directly on the internet at http:// 2018 through the resumption of enforcement.trade.gov/frn/. The signed International Trade Administration operations on January 29, 2019.5 In this Preliminary Decision Memorandum and case, the original deadline for the the electronic versions of the [A–570–912] preliminary results of the underlying Preliminary Decision Memorandum are administrative review was June 3, identical in content. Certain New Pneumatic Off-the-Road 6 2019. Thus, the revised initial deadline Scope of the Order Tires From the People’s Republic of for the preliminary results in this review China: Preliminary Results of was tolled to July 12, 2019. The merchandise covered by this Antidumping Duty Administrative On June 19, 2019, pursuant to section order includes new pneumatic tires Review; 2017–2018 751(a)(3)(A) Tariff Act of 1930, as designed for off-the-road and off- amended (the Act), we determined that highway use, subject to certain AGENCY: Enforcement and Compliance, it was not practicable to complete the exceptions. The subject merchandise is International Trade Administration, preliminary results of this review within currently classifiable under Harmonized Department of Commerce. Tariff Schedule of the United States SUMMARY: The Department of Commerce 1 See Antidumping or Countervailing Duty Order, (HTSUS) subheadings: 4011.20.10.25, (Commerce) preliminarily determines Finding, or Suspended Investigation; Opportunity 4011.20.10.35, 4011.20.50.30, that Weihai Zhongwei Rubber Co., Ltd. to Request Administrative Review, 83 FR 45888 4011.20.50.50, 4011.61.00.00, (September 11, 2018). (Zhongwei), an exporter of certain new 4011.62.00.00, 4011.63.00.00, 2 See Initiation of Antidumping and 4011.69.00.00, 4011.92.00.00, pneumatic off-the-road tires (OTR tires) Countervailing Duty Administrative Reviews, 83 FR from the People’s Republic of China 57411 (November 15, 2018). 4011.93.40.00, 4011.93.80.00, (China), did not sell merchandise in the 3 See Memorandum, ‘‘Administrative Review of 4011.94.40.00, and 4011.94.80.00. The United States at prices below normal Certain New Pneumatic Off-the-Road Tires from the HTSUS subheadings are provided for People’s Republic of China,’’ dated January 31, value (NV) during the period of review convenience and customs purposes 2019. only; the written product description of (POR) September 1, 2017 through 4 See Certain New Pneumatic Off-the-Road Tires August 31, 2018. We invite interested from the People’s Republic of China: Notice of the scope of the order is dispositive. For parties to comment on these preliminary Partial Rescission of the Antidumping Duty a complete description of the scope of results. Administrative Review; 2017–2018, 84 FR 13633 the order, see the Preliminary Decision (April 5, 2019); see also Certain New Pneumatic Memorandum.10 DATES: Applicable August 23, 2019. Off-the-Road Tires from the People’s Republic of China: Notice of Correction to the Partial Rescission Methodology FOR FURTHER INFORMATION CONTACT: of the Antidumping Duty Administrative Review; Keith Haynes, AD/CVD Operations, 2017–2018, 84 FR 15179 (April 15, 2019). Commerce is conducting this review Office III, Enforcement and Compliance, 5 See Memorandum to the Record from Gary in accordance with section 751(a)(1)(B) International Trade Administration, Taverman, Deputy Assistant Secretary for and 751(a)(2)(A) of the Act. Export Antidumping and Countervailing Duty Operations, U.S. Department of Commerce, 1401 performing the non-exclusive functions and duties Constitution Avenue NW, Washington, of the Assistant Secretary for Enforcement and 7 See Memorandum, ‘‘New Pneumatic Off-The- DC 20230; telephone: (202) 482–5139. Compliance, ‘‘Deadlines Affected by the Partial Road Tires from the People’s Republic of China: Shutdown of the Federal Government,’’ dated Extension of Deadline for Preliminary Results of the SUPPLEMENTARY INFORMATION: January 28, 2019. All deadlines in this segment of 2017–2018 Antidumping Duty Administrative the proceeding have been extended by 40 days. Review,’’ dated June 19, 2019. Background 6 The calculated initial deadline of June 2, 2019 8 Id. at 2. was a Sunday. Commerce’s practice dictates that 9 See Memorandum, ‘‘Decision Memorandum for On September 11, 2018, Commerce where a deadline falls on a weekend or a federal Preliminary Results of the Antidumping Duty published a notice of opportunity to holiday, the appropriate deadline is the next Administrative Review: Certain New Pneumatic request an administrative review of the business day. See Notice of Clarification: Off-the-Road Tires from the People’s Republic of antidumping duty (AD) order on OTR Application of ‘‘Next Business Day’’ Rule for China; 2017–2018,’’ dated concurrently with, and Administrative Determination Deadlines Pursuant hereby adopted by, this notice (Preliminary tires from China for the period to the Tariff Act of 1930, As Amended, 70 FR 24533 Decision Memorandum). September 1, 2017 through August 31, (May 10, 2005). 10 Id.

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prices have been calculated in average dumping margins for a table of authorities.17 Parties accordance with section 772(a) of the individually-examined respondents, submitting briefs should do so pursuant Act. Because China is a non-market excluding rates that are zero, de to Commerce’s electronic filing system, economy within the meaning of section minimis, or based entirely on facts ACCESS.18 771(18) of the Act, NV has been available. Where the rates for the Any interested party may request a calculated in accordance with section individually examined companies are hearing within 30 days of publication of 773(c) of the Act. all zero, de minimis, or based entirely this notice.19 Hearing requests should For a full description of the on facts available, section 735(c)(5)(B) of contain the following information: (1) methodology underlying our the Act provides that Commerce may The party’s name, address, and conclusions, see the Preliminary use ‘‘any reasonable method’’ to telephone number; (2) the number of Decision Memorandum. establish the all-others rate. As the participants; and (3) a list of the issues to be discussed. Oral presentations will China-Wide Entity margin preliminarily calculated for the mandatory respondent, Zhongwei, is be limited to issues raised in the briefs. Commerce’s policy regarding zero, we preliminarily assigned If a request for a hearing is made, parties conditional review of the China-wide Honghua, the sole separate-rate will be notified of the time and date for entity applies to this administrative the hearing to be held at the U.S. 11 respondent not selected for individual review. Under this policy, the China- examination in this review, a separate Department of Commerce, 1401 wide entity will not be under review rate margin based on Zhongwei’s Constitution Avenue NW, Washington, unless a party specifically requests, or weighted-average dumping margin, DC 20230.20 Commerce self-initiates, a review of the which we find to be reasonable and Commerce intends to issue the final entity. Because no party requested a consistent with practice.14 results of this administrative review, review of the China-wide entity in this which will include the results of our review, and we did not self-initiate a Preliminary Results of Review analysis of all issues raised in the case review of the entity, the entity is not We preliminarily determine that the briefs, within 120 days of publication of under review and the entity’s rate (i.e., following weighted-average dumping these preliminary results in the Federal 105.31 percent) is not subject to margins exist for the period September Register, pursuant to section 12 change. 1, 2017 through August 31, 2018: 751(a)(3)(A) of the Act. Separate Rates Assessment Rates Weighted- Commerce preliminarily determines average Upon issuance of the final results, that information placed on the record by Exporter dumping Commerce will determine, and U.S. Zhongwei and Honghua demonstrates margin Customs and Border Protection (CBP) (percent) that these companies are entitled to shall assess, antidumping duties on all 13 separate rate status. For additional Weihai Zhongwei Rubber Co., appropriate entries covered by this information, see the Preliminary Ltd ...... 0.00 review.21 Commerce intends to issue Decision Memorandum. Qingdao Honghua Tyre Factory 0.00 assessment instructions to CBP 15 days Dumping Margins for Separate Rate after the publication date of the final Company Disclosure and Public Comment results of this review. If Zhongwei’s weighted-average The statute and Commerce’s Commerce intends to disclose the dumping margin is not zero or de regulations do not address what rate to calculations used in our analysis to minimis (i.e., less than 0.5 percent) in apply to respondents not selected for parties in this review within five days the final results of this review, individual examination when of the date of publication of this notice Commerce will calculate importer- Commerce limits its examination in an in accordance with 19 CFR 351.224(b). specific assessment rates on the basis of administrative review pursuant to Interested parties may submit case the ratio of the total amount of dumping section 777A(c)(2) of the Act. Generally, briefs within 30 days after the date of calculated for the importer’s examined Commerce looks to section 735(c)(5) of publication of these preliminary results sales to the total entered value of sales, 15 the Act, which provides instructions for of review in the Federal Register. in accordance with 19 CFR calculating the all-others rate in an Rebuttals to case briefs, which must be 351.212(b)(1). For customers or investigation, for guidance when limited to issues raised in the case importers of Zhongwei for which we calculating the rate for non-selected briefs, must be filed within five days received entered-value information, we respondents that are not examined after the time limit for filing case have calculated importer-(or customer-) individually in an administrative briefs.16 Parties who submit arguments specific antidumping duty assessment review. Section 735(c)(5)(A) of the Act are requested to submit with the rates based on importer-(or customer-) states that the all-others rate should be argument (a) a statement of the issue, (b) specific ad valorem rates.22 Where an calculated by averaging the weighted- a brief summary of the argument, and (c) importer-or (customer-) specific ad valorem rate is greater than de minimis, 11 See Antidumping Proceedings: Announcement 14 See, e.g., Diamond Sawblades and Parts Commerce will instruct CBP to collect of Change in Department Practice for Respondent Thereof from the People’s Republic of China: Final Selection in Antidumping Duty Proceedings and Results of Antidumping Duty Administrative the appropriate duties at the time of Conditional Review of the Nonmarket Economy Review; 2015–2016, 83 FR 17527 (April 20, 2018), liquidation.23 If Zhongwei’s weighted- Entity in NME Antidumping Duty Proceedings, 78 and accompanying Issues and Decision average dumping margin is zero or de FR 65963 (November 4, 2013). Memorandum at Comment 4; see also Heavy Walled 12 Rectangular Welded Carbon Steel Pipes and Tubes See Certain New Pneumatic Off-the-Road Tires 17 See 19 CFR 351.309(c)(2), (d)(2). from the People’s Republic of China: Final Results from the Republic of Turkey: Preliminary Results of 18 See 19 CFR 351.303 (for general filing of Antidumping Duty Administrative Review; 2012– Antidumping Duty Administrative Review and requirements). 2013, 80 FR 20197 (April 15, 2015). Preliminary Determination of No Shipments; 2017– 19 See 19 CFR 351.310(c). 13 See Zhongwei’s March 11, 2019 Section A 2018, 84 FR 34863, 34864 (July 19, 2019) (citing 20 Questionnaire Response at 2–14; see also Honghua’s Albemarle Corp. v. United States, 821 F.3d 1345 See 19 CFR 351.310(d). Letter, ‘‘Separate Rate Application: Certain New (Fed. Cir. 2016)). 21 See 19 CFR 351.212(b). Pneumatic Off-the-Road Tires from the People’s 15 See 19 CFR 351.309(c)(1)(ii). 22 Id. Republic of China,’’ dated December 14, 2018. 16 See 19 CFR 351.309(d)(1)–(2). 23 See 19 CFR 351.212(b)(1).

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minimis, we will instruct CBP to II. Background FOR FURTHER INFORMATION CONTACT: liquidate the appropriate entries III. Scope of the Order Jennifer Skidmore or Sara Young, (301) without regard to antidumping duties. IV. Discussion of the Methodology 427–8401. Entries by Honghua, the separate rate V. Currency Conversions VI. Adjustment Under Section 777A(f) of the respondent, will be assessed at the cash SUPPLEMENTARY INFORMATION: The Act subject permit is requested under the deposit rate, since it is not a mandatory VII. Recommendation respondent. If Zhongwei’s margin is authority of the Marine Mammal [FR Doc. 2019–18147 Filed 8–22–19; 8:45 am] above de minimis at final, we will Protection Act of 1972, as amended calculate importer-specific assessment BILLING CODE 3510–DS–P (MMPA; 16 U.S.C. 1361 et seq.), the rates, which only apply to Zhongwei’s regulations governing the taking and importing of marine mammals (50 CFR importers. DEPARTMENT OF COMMERCE For entries that were not reported in part 216), the Endangered Species Act of the U.S. sales database submitted by an National Oceanic and Atmospheric 1973, as amended (ESA; 16 U.S.C. 1531 exporter individually examined during Administration et seq.), and the regulations governing this review, Commerce will instruct RIN 0648–XR024 the taking, importing, and exporting of CBP to liquidate such entries at the endangered and threatened species (50 China-wide rate. Additionally, if Marine Mammals; File No. 22851 CFR parts 222–226). Commerce determines that an exporter under review had no shipments of the AGENCY: National Marine Fisheries Sea Life Park Hawaii proposes to subject merchandise, any suspended Service (NMFS), National Oceanic and maintain up to four non-releasable adult entries that entered under that Atmospheric Administration (NOAA), Hawaiian monk seals for enhancement exporter’s case number will be Commerce. purposes. These seals would be animals liquidated at the China-wide rate.24 ACTION: Notice; receipt of application. removed from the wild under separate permits for stranding response and Cash Deposit Requirements SUMMARY: Notice is hereby given that enhancement and will be animals that Because the antidumping duty order Sea Life Park Hawaii, 41–202 have been deemed non-releasable to the on OTR tires from China was revoked,25 Kalanianaole Highway #7, Waimanalo, wild. A public conservation and Commerce will not issue cash deposit HI 96795 (Valerie King, Responsible education lecture will be conducted instructions at the conclusion of this Party), has applied in due form for a daily concerning the status of Hawaiian administrative review. permit to maintain non-releasable monk seals, and educational descriptive Hawaiian monk seals (Neomonachus Notification to Importers signs with current information are on schauinslandi) in captivity for display at the monk seal exhibit. In This notice also serves as a enhancement purposes. addition, these animals will be made preliminary reminder to importers of DATES: Written, telefaxed, or email available for scientific studies by their responsibility under 19 CFR comments must be received on or before 351.402(f)(2) to file a certificate September 23, 2019. researchers whose research protocols regarding the reimbursement of are approved by the Sea Life Park ADDRESSES: The application and related antidumping and/or countervailing documents are available for review by Hawaii Curator and staff veterinarian duties prior to liquidation of the selecting ‘‘Records Open for Public and authorized under separate permits. relevant entries during the POR. Failure Comment’’ from the ‘‘Features’’ box on The requested duration of this permit is to comply with this requirement could the Applications and Permits for five years. result in Commerce’s presumption that Protected Species (APPS) home page, In compliance with the National reimbursement of antidumping and/or https://apps.nmfs.noaa.gov, and then Environmental Policy Act of 1969 (42 countervailing duties occurred and the selecting File No. 22851 from the list of subsequent assessment of double U.S.C. 4321 et seq.), an initial available applications. antidumping duties. determination has been made that the These documents are also available activity proposed is categorically Notification to Interested Parties upon written request or by appointment excluded from the requirement to These preliminary results are issued in the Permits and Conservation prepare an environmental assessment or and published in accordance with Division, Office of Protected Resources, environmental impact statement. NMFS, 1315 East-West Highway, Room sections 751(a)(1) and 777(i)(1) of the Concurrent with the publication of Act and 19 CFR 351.221(b)(4). 13705, Silver Spring, MD 20910; phone: (301) 427–8401; fax: (301) 713–0376. this notice in the Federal Register, Dated: August 16, 2019. Written comments on this application NMFS is forwarding copies of the Jeffrey I. Kessler, should be submitted to the Chief, application to the Marine Mammal Assistant Secretary for Enforcement and Permits and Conservation Division, at Commission and its Committee of Compliance. the address listed above. Comments may Scientific Advisors. Appendix also be submitted by facsimile to (301) Dated: August 19, 2019. 713–0376, or by email to List of Topics Discussed in the Preliminary Julia Marie Harrison, Decision Memorandum [email protected]. Please include the File No. 22851 in the subject Chief, Permits and Conservation Division, I. Summary line of the email comment. Office of Protected Resources, National Those individuals requesting a public Marine Fisheries Service. 24 See Non-Market Economy Antidumping [FR Doc. 2019–18170 Filed 8–22–19; 8:45 am] Proceedings: Assessment of Antidumping Duties, 76 hearing should submit a written request FR 65694 (October 24, 2011). to the Chief, Permits and Conservation BILLING CODE 3510–22–P 25 See Certain New Pneumatic Off-the-Road Tires Division at the address listed above. The from the People’s Republic of China: Final Results request should set forth the specific of Sunset Reviews and Revocation of Antidumping Duty and Countervailing Duty Orders, 84 FR 20616 reasons why a hearing on this (May 10, 2019). application would be appropriate.

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DEPARTMENT OF COMMERCE cod and delivering their catch for not replace the U.S. Postal Service processing to a shoreside processor notification requirement. National Oceanic and Atmospheric located on land west of 170° W III. Data Administration longitude in the Aleutian Islands (‘‘Aleutian Islands shoreplant’’). This OMB Control Number: 0648–0743. Proposed Information Collection; harvest set-aside applies only if specific Form Number(s): None. Comment Request; Alaska Notification notification and performance Type of Review: Regular submission of Intent To Process Aleutian Islands requirements are met, and only during (extension of a current information Pacific Cod the first few months of the fishing year. collection). Affected Public: Local government. AGENCY: National Oceanic and This harvest set-aside provides the opportunity for vessels, Aleutian Islands Estimated Number of Respondents: 2. Atmospheric Administration (NOAA), Estimated Time per Response: 30 Commerce. shoreplants, and the communities where Aleutian Islands shoreplants are minutes for annual notification of intent ACTION: Notice. located to receive benefits from a to process Aleutian Island Pacific cod. Estimated Total Annual Burden portion of the Aleutian Islands Pacific SUMMARY: The Department of Hours: 1 hour. cod fishery. The notification and Commerce, as part of its continuing Estimated Total Annual Cost to performance requirements preserve an effort to reduce paperwork and Public: $8 in recordkeeping and opportunity for the complete harvest of respondent burden, invites the general reporting costs. public and other Federal agencies to the BSAI Pacific cod resource if the set- take this opportunity to comment on aside is not fully harvested. IV. Request for Comments proposed and/or continuing information This collection of information Comments are invited on: (a) Whether collections, as required by the contains the annual notification of the proposed collection of information Paperwork Reduction Act of 1995. intent that the City of Adak or the City is necessary for the proper performance DATES: Written comments must be of Atka submits to NMFS of its intent of the functions of the agency, including submitted on or before October 22, to process Aleutian Islands Pacific cod whether the information shall have 2019. in the upcoming fishing year in order practical utility; (b) the accuracy of the for the Bering Sea Trawl Catcher Vessel agency’s estimate of the burden ADDRESSES: Direct all written comments A-Season Sector Limitation and the to Adrienne Thomas, Government (including hours and cost) of the Aleutian Islands Catcher Vessel Harvest proposed collection of information; (c) Information Specialist, NOAA, 151 Set-Aside to go into effect in the Patton Avenue, Room 159, Asheville, ways to enhance the quality, utility, and upcoming fishing year. The City clarity of the information to be NC 28801 (or via the internet at Manager of Adak or the City [email protected]). All comments collected; and (d) ways to minimize the Administrator of Atka is required to burden of the collection of information received will be a part of the public provide NMFS with the annual record. Comments will generally be on respondents, including through the notification of intent no later than use of automated collection techniques posted without change. All Personally October 31 for the harvest set-aside to go Identifiable Information (for example, or other forms of information into effect in the upcoming year. technology. name and address) voluntarily In March 2019, the U.S. District Court submitted by the commenter may be Comments submitted in response to for the District of Columbia vacated the this notice will be summarized and/or publicly accessible. Do not submit rule implementing Amendment 113 and Confidential Business Information or included in the request for OMB remanded Amendment 113 to NMFS for approval of this information collection; otherwise sensitive or protected reconsideration. In May 2019, the U.S. information. they also will become a matter of public Department of Justice filed a notice of record. FOR FURTHER INFORMATION CONTACT: appeal. Requests for additional information or As the annual notification of intent is Sheleen Dumas, copies of the information collection based on the vacated regulations that Departmental Lead PRA Officer, Office of the instrument and instructions should be implemented Amendment 113, this Chief Information Officer, Commerce directed to Gabrielle Aberle, National information will not be collected unless Department. Marine Fisheries Service, P.O. Box the regulations are reinstated on appeal. [FR Doc. 2019–18180 Filed 8–22–19; 8:45 am] 21668, Juneau, AK 99802–1668. NMFS is requesting renewal of this BILLING CODE 3510–22–P Telephone (907) 586–7228. collection of information in the event of a successful appeal. SUPPLEMENTARY INFORMATION: DEPARTMENT OF COMMERCE I. Abstract II. Method of Collection National Oceanic and Atmospheric This request is for extension of a The City Manager of Adak or the City Administration currently approved information Administrator of Atka submits a letter or collection. memorandum to NMFS indicating that RIN 0648–XVOO1 In 2016, NMFS implemented this the community he or she represents Determination of Overfishing or an collection of information under intends to process Aleutian Islands Overfished Condition Amendment 113 to the Fishery Pacific cod. This notification of intent Management Plan for Groundfish of the must be submitted annually by certified AGENCY: National Marine Fisheries Bering Sea and Aleutian Islands (BSAI) mail through the U.S. Postal Service and Service (NMFS), National Oceanic and Management Area. Amendment 113 postmarked no later than October 31. It Atmospheric Administration (NOAA), modified management of the BSAI may also be emailed to ensure that Commerce. Pacific cod fishery to set aside a portion NMFS has received notification prior to ACTION: Notice. of the Aleutian Islands (AI) Pacific cod November 1. Email notification is total allowable catch for harvest by optional and in addition to notification SUMMARY: This action serves as a notice vessels directed fishing for AI Pacific via the U.S. Postal Service; email does that NMFS, on behalf of the Secretary of

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Commerce (Secretary), has found that FOR FURTHER INFORMATION CONTACT: For ADDRESSES: Committee for Purchase the northern subpopulation of Pacific further information or to submit From People Who Are Blind or Severely sardine is now overfished. NMFS, on comments contact: Michael R. Disabled, 1401 S Clark Street, Suite 715, behalf of the Secretary, notifies the Jurkowski, Telephone: (703) 603–2117, Arlington, Virginia 22202–4149. appropriate regional fishery Fax: (703) 603–0655, or email FOR FURTHER INFORMATION CONTACT: management council (Council) [email protected]. Michael R. Jurkowski, Telephone: (703) whenever it determines that overfishing SUPPLEMENTARY INFORMATION: This 603–2117, Fax: (703) 603–0655, or email is occurring, a stock is in an overfished notice is published pursuant to 41 [email protected]. condition, or a stock is approaching an U.S.C. 8503 (a)(2) and 41 CFR 51–2.3. Its SUPPLEMENTARY INFORMATION: overfished condition. purpose is to provide interested persons FOR FURTHER INFORMATION CONTACT: an opportunity to submit comments on Deletions Regina Spallone, (301) 427–8568. the proposed actions. On 7/19/2019, the Committee for SUPPLEMENTARY INFORMATION: Pursuant Purchase From People Who Are Blind to section 304(e)(2) of the Magnuson- Additions or Severely Disabled published notice of Stevens Fishery Conservation and If the Committee approves the proposed proposed deletions from the Management Act (Magnuson-Stevens additions, the entities of the Federal Procurement List. Act), 16 U.S.C. 1854(e)(2), NMFS, on Government identified in this notice will be After consideration of the relevant behalf of the Secretary, must notify required to procure the services listed below matter presented, the Committee has Councils, and publish in the Federal from nonprofit agencies employing persons determined that the products and Register, whenever it determines that a who are blind or have other severe services listed below are no longer stock or stock complex is subject to disabilities. suitable for procurement by the Federal overfishing, overfished, or approaching The following services are proposed for Government under 41 U.S.C. 8501–8506 addition to the Procurement List for and 41 CFR 51–2.4. an overfished condition. production by the nonprofit agencies listed: NMFS has determined that the Regulatory Flexibility Act Certification northern subpopulation of Pacific Services sardine is now overfished. The most Service Type: Janitorial Service I certify that the following action will recent assessment for Pacific sardine, Mandatory for: US Coast Guard, USCG not have a significant impact on a finalized in 2019, using data through Training Center, Petaluma, CA substantial number of small entities. 2018 and estimating a stock size on July Mandatory for: US Coast Guard, USCG The major factors considered for this 1, 2019, indicates that the stock is Pacific Strike Team, Novato, CA certification were: overfished because the biomass is Mandatory Source of Supply: North Bay 1. The action will not result in Rehabilitation Services, Inc., Rohnert projected to be less than the minimum additional reporting, recordkeeping or Park, CA other compliance requirements for small stock size threshold. NMFS has Contracting Activity: U.S. COAST GUARD, informed the Pacific Fishery entities. SILC BSS(00084) 2. The action may result in Management Council that it must Service Type: Transportation Maintenance develop a rebuilding plan for this stock. and Operations Services authorizing small entities to furnish the products and services to the Authority: 16 U.S.C. 1854 et seq. Mandatory for: US Navy, MCIEast, MCB Camp Lejeune (including MCAS New Government. Dated: August 20, 2019. River), Camp Lejeune, NC 3. There are no known regulatory Alan D. Risenhoover, Mandatory Source of Supply: Skookum alternatives which would accomplish Director, Office of Sustainable Fisheries, Educational Programs, Bremerton, WA the objectives of the Javits-Wagner- National Marine Fisheries Service. Contracting Activity: DEPT OF THE NAVY, O’Day Act (41 U.S.C. 8501–8506) in COMMANDING GENERAL [FR Doc. 2019–18188 Filed 8–22–19; 8:45 am] connection with the products and BILLING CODE 3510–22–P Patricia Briscoe, services deleted from the Procurement Deputy Director, Business Operations (Pricing List. and Information Management). End of Certification COMMITTEE FOR PURCHASE FROM [FR Doc. 2019–18194 Filed 8–22–19; 8:45 am] Accordingly, the following products PEOPLE WHO ARE BLIND OR BILLING CODE 6353–01–P and services are deleted from the SEVERELY DISABLED Procurement List: Procurement List; Proposed Additions COMMITTEE FOR PURCHASE FROM Products AGENCY: Committee for Purchase From PEOPLE WHO ARE BLIND OR NSNs—Product Names: People Who Are Blind or Severely SEVERELY DISABLED 7510–01–670–3776—Toner, Disabled. Remanufactured, LaserJet, Standard Procurement List; Deletions Yield, HP 4700/N/DN/DTN/PH ACTION: Proposed Additions to the Compatible, Black Procurement List. AGENCY: Committee for Purchase From 7510–01–670–3781—Toner, People Who Are Blind or Severely Remanufactured, LaserJet, Standard SUMMARY: The Committee is proposing Disabled. Yield, HP 4700/N/DN/DTN/PH to add services to the Procurement List ACTION: Deletions from the Procurement Compatible, Cyan that will be furnished by nonprofit List. 7510–01–670–3778—Toner, agencies employing persons who are Remanufactured, LaserJet, Standard blind or have other severe disabilities. SUMMARY: This action deletes products Yield, HP 4700/N/DN/DTN/PH DATES: Comments must be received on and services from the Procurement List Compatible, Yellow or before: September 22, 2019. that were furnished by nonprofit 7510–01–670–9250—Toner, agencies employing persons who are Remanufactured, LaserJet, Standard ADDRESSES: Committee for Purchase Yield, HP 4700/N/DN/DTN/PH From People Who Are Blind or Severely blind or have other severe disabilities. Compatible, Magenta Disabled, 1401 S Clark Street, Suite 715, DATES: Date deleted from the Mandatory Source of Supply: Alabama Arlington, Virginia 22202–4149. Procurement List: September 22, 2019. Industries for the Blind, Talladega, AL

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Contracting Activity: GSA/FAS ADMIN COMMODITY FUTURES TRADING SUPPLEMENTARY INFORMATION: The SVCS ACQUISITION BR(2, NEW YORK, COMMISSION meeting will be open to the public. NY Members of the public may listen to the NSN—Product Name: MR 10735—Crust Market Risk Advisory Committee; meeting by telephone by calling a Cutter, Licensed, Includes Shipper 20735 Meeting domestic toll-free telephone or Mandatory Source of Supply: Winston-Salem AGENCY: international toll or toll-free number to Industries for the Blind, Inc., Winston- Commodity Futures Trading Commission. connect to a live, listen-only audio feed. Salem, NC Call-in participants should be prepared ACTION: Notice of meeting. Contracting Activity: Military Resale-Defense to provide their first name, last name, Commissary Agency SUMMARY: The Commodity Futures and affiliation. • Services Trading Commission (CFTC) announces Domestic Toll Free: 1–866–844– 9416. Service Type: Litter Pickup that on September 9, 2019, from 3:00 p.m. to 5:00 p.m. (Eastern Standard • International Toll and Toll Free: Mandatory for: Andrews Air Force Base, Will be posted on the CFTC’s website, Andrews AFB, MD Time), the Market Risk Advisory http://www.cftc.gov, on the page for the Mandatory Source of Supply: The Chimes, Committee (MRAC) will hold a public meeting, under Related Links. Inc., Baltimore, MD meeting via teleconference. At this meeting, the MRAC will receive a status • Pass Code/Pin Code: 4136858. Contracting Activity: DEPT OF THE AIR The meeting agenda may change to FORCE, FA4416 316 CONS LGC update from the Interest Rate accommodate other MRAC priorities. Service Type: Janitorial/Custodial Benchmark Reform Subcommittee For agenda updates, please visit the Mandatory for: Forest Supervisor’s Office and (Subcommittee) and vote on a MRAC committee site at: https:// Warehouse, 3815 Schreiber Way, Coeur recommendation of the Subcommittee. In addition, the MRAC will discuss www.cftc.gov/About/CFTCCommittees/ d’Alene, ID _ Mandatory Source of Supply: Skils’kin, other issues involving the transition MarketRiskAdvisoryCommittee/mrac Spokane, WA from the London Inter-bank Offered meetings.html. Contracting Activity: FOREST SERVICE, Rate to risk-free reference rates, All written submissions provided to IMAT ACQUISITION TEAM including central counterparty the CFTC in any form will also be Service Type: Janitorial/Guard Service adjustments to discounting/price published on the CFTC’s website. Mandatory for: VA Outpatient Clinic, alignment interest and the clearing Persons requiring special Brighton, NY treatment for certain physically-settled accommodations to attend the meeting Mandatory Source of Supply: Rochester swaptions. because of a disability should notify the contact person above. Rehabilitation Center, Rochester, NY DATES: The meeting will be held on Contracting Activity: VETERANS AFFAIRS, September 9, 2019, from 3:00 p.m. to Authority: 5 U.S.C. app. 2 section 10(a)(2). DEPARTMENT OF, NAC 5:00 p.m. (Eastern Standard Time). Dated: August 20, 2019. Service Type: Food Service Attendant Please note that the teleconference may Robert Sidman, Mandatory for: Veterans Affairs Medical end early if the MRAC has completed its Deputy Secretary of the Commission. Center: 7305 N Military Trail, West Palm business. Members of the public who [FR Doc. 2019–18250 Filed 8–22–19; 8:45 am] Beach, FL wish to submit written statements in Mandatory Source of Supply: Gulfstream connection with the meeting should BILLING CODE 6351–01–P Goodwill Industries, Inc., West Palm submit them by September 16, 2019. Beach, FL ADDRESSES: The meeting will be held Contracting Activity: VETERANS AFFAIRS, COMMODITY FUTURES TRADING via teleconference. You may submit DEPARTMENT OF, NAC COMMISSION public comments, identified by ‘‘Market Service Type: Parking Facility Attendant Risk Advisory Committee,’’ by any of Agency Information Collection Mandatory for: Department of Veterans Activities: Notice of Intent To Renew Affairs Medical Center: 4646 John R the following methods: • CFTC website: http:// Street, John D. Dingell VA Medical Collection 3038–0031, Procurement comments.cftc.gov. Follow the Center, Detroit, MI Contracts instructions for submitting comments Mandatory Source of Supply: Jewish through the Comments Online process AGENCY: Commodity Futures Trading Vocational Service and Community Commission. Workshop, Southfield, MI on the website. • Mail: Christopher Kirkpatrick, ACTION: Notice. Contracting Activity: VETERANS AFFAIRS, Secretary of the Commission, DEPARTMENT OF, NAC Commodity Futures Trading SUMMARY: In compliance with the Service Type: Switchboard Operation Paperwork Reduction Act (PRA), this Mandatory for: Veterans Affairs Medical Commission, Three Lafayette Center, 1155 21st Street NW, Washington, DC notice announces that the Information Center: 4300 West 7th Street, North Little Collection Request (ICR) abstracted Rock, AR 20581. • Hand Delivery/Courier: Same as below has been forwarded to the Office Mandatory Source of Supply: Pathfinder, of Management and Budget (OMB) for Inc., Jacksonville, AR Mail, above. Any statements submitted in review and comment. The ICR describes Contracting Activity: VETERANS AFFAIRS, connection with the committee meeting the nature of the information collection DEPARTMENT OF, DEPARTMENT OF and its expected costs and burden. VETERANS AFFAIRS will be made available to the public, including publication on the CFTC DATES: Comments must be submitted on Patricia Briscoe, website, http://www.cftc.gov. or before September 23, 2019. Deputy Director, Business Operations (Pricing FOR FURTHER INFORMATION CONTACT: ADDRESSES: Comments regarding the and Information Management). Alicia L. Lewis, MRAC Designated burden estimated or any other aspect of [FR Doc. 2019–18195 Filed 8–22–19; 8:45 am] Federal Officer, Commodity Futures the information collection, including BILLING CODE 6353–01–P Trading Commission, Three Lafayette suggestions for reducing the burden, Centre, 1155 21st Street NW, may be submitted directly to the Office Washington, DC 20581; (202) 418–5862. of Information and Regulatory Affairs

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(OIRA) in OMB, within 30 days of this laws, and may be accessible under the Dated: August 20, 2019. notice’s publication, by either of the Freedom of Information Act. Robert Sidman, following methods. Please identify the FOR FURTHER INFORMATION CONTACT: Deputy Secretary of the Commission. comments by ‘‘OMB Control No. 3038– William M. Roberson, Senior [FR Doc. 2019–18225 Filed 8–22–19; 8:45 am] 0031.’’ Procurement Executive, Financial BILLING CODE 6351–01–P • By email addressed to: Management Branch, Commodity [email protected] or Futures Trading Commission, Three • By mail addressed to: The Office of Lafayette Centre, 1122 21st Street NW, BUREAU OF CONSUMER FINANCIAL Information and Regulatory Affairs, Washington, DC 20581; phone: (202) PROTECTION Office of Management and Budget, 418–5367; fax: (202) 418–5414; email: [Docket No. CFPB–2019–0044] Attention Desk Officer for the [email protected], and refer to OMB Commodity Futures Trading Control No. 3038–0031. Commission, 725 17th Street NW, Agency Information Collection SUPPLEMENTARY INFORMATION: Washington, DC 20503. Activities: Submission for OMB Review; Comment Request A copy of all comments submitted to Title: Procurement Contracts (OMB Control No. 3038–0031). This is a OIRA should be sent to the Commodity AGENCY: Bureau of Consumer Financial request for an extension of a currently Futures Trading Commission Protection. approved information collection. (Commission) by any of the following ACTION: Notice and request for comment. methods. The copies should refer to Abstract: The information collection ‘‘OMB Control No. 3038–0031.’’ consists of data gathered through the SUMMARY: In accordance with the • By mail addressed to: Christopher use of procurement forms, specific to a Paperwork Reduction Act of 1995 Kirkpatrick, Secretary of the contract or contracting action, relating (PRA), the Bureau of Consumer Commission, Commodity Futures to solicitations, amendments to Financial Protection (Bureau) is Trading Commission, Three Lafayette solicitations, requests for quotations, requesting to renew the Office of Centre, 1155 21st Street NW, construction contracts, awards of Management and Budget (OMB) Washington, DC 20581; contracts, performance bonds, and approval for an existing information • By Hand Delivery/Courier to the payment information for individuals collection titled, ‘‘Regulation I: same address; or (vendors) or contractors engaged in Disclosure Requirements for Depository • Through the Commission’s website providing supplies or services, as Institutions Lacking Federal Deposit at http://comments.cftc.gov. Please specified in the Federal Acquisition Insurance (12 CFR 1009).’’ follow the instructions for submitting Regulations (48 CFR parts 1–53). DATES: Written comments are comments through the website. An agency may not conduct or encouraged and must be received on or Please submit your comments to the sponsor, and a person is not required to before September 23, 2019 to be assured Commission using only one method. A respond to, a collection of information of consideration. copy of the supporting statement for the unless it displays a currently valid OMB ADDRESSES: Comments in response to collection of information discussed control number. On June 14, 2019, the this notice are to be directed towards herein may be obtained by visiting Commission published in the Federal OMB and to the attention of the OMB http://RegInfo.gov. Register notice of the proposed Desk Officer for the Bureau of Consumer All comments must be submitted in extension of this information collection Financial Protection. You may submit English, or if not, accompanied by an and provided 60 days for public comments, identified by the title of the English translation. Comments will be comment on the proposed extension, 84 information collection, OMB Control posted as received to http:// FR 27770 (60-Day Notice). The Number (see below), and docket number www.cftc.gov. You should submit only Commission did not receive any (see above), by any of the following information that you wish to make relevant comments on the 60-Day methods: available publicly. If you wish the Notice. • Electronic: http:// Commission to consider information Burden statement: The Commission is www.regulations.gov. Follow the that you believe is exempt from revising its burden estimate for this instructions for submitting comments. disclosure under the Freedom of collection to reflect changed • Email: OIRA_submission@ Information Act, a petition for circumstances, as follows: 2 omb.eop.gov. confidential treatment of the exempt Respondents/affected entities: • Fax: (202) 395–5806. information may be submitted according Vendors and contractors. • Mail: Office of Management and to the procedures established in § 145.9 Estimated number of respondents: Budget, New Executive Office Building, of the Commission’s regulations.1 The 758. Room 10235, Washington, DC 20503. Commission reserves the right, but shall Estimated burden hours per response: In general, all comments received will have no obligation, to review, pre- 2 hours. become public records, including any screen, filter, redact, refuse or remove Estimated total annual burden on personal information provided. any or all of your submission from respondents: 1,516 hours. Sensitive personal information, such as http://www.cftc.gov that it may deem to Frequency of responses: Annually. account numbers or Social Security be inappropriate for publication, such as numbers, should not be included. There are no capital costs or operating obscene language. All submissions that and maintenance costs associated with FOR FURTHER INFORMATION CONTACT: have been redacted or removed that this collection. Documentation prepared in support of contain comments on the merits of the this information collection request is ICR will be retained in the public Authority: 44 U.S.C. 3501 et seq. available at www.reginfo.gov (this link comment file and will be considered as becomes active on the day following required under the Administrative 2 The changes in the current renewal reflect the publication of this notice). Select Procedure Act and other applicable fact that acquisition requirements change from year to year. Estimated burden increases are also due to ‘‘Information Collection Review,’’ under the Commission’s higher acquisition volume, ‘‘Currently under review, use the 1 17 CFR 145.9. normal inflation and fluctuations in the economy. dropdown menu ‘‘Select Agency’’ and

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select ‘‘Consumer Financial Protection response to this notice will be reviewed The Board shall be composed of no Bureau’’ (recent submissions to OMB by OMB as part of its review of this less than six and no more than 14 will be at the top of the list). The same request. All comments will become a members, jointly approved by the documentation is also available at matter of public record. Secretaries of Defense and Energy and http://www.regulations.gov. Requests for Dated: August 20, 2019. in consultation with the Administrator of the Environmental Protection additional information should be Darrin A. King, directed to Darrin King, PRA Officer, at Agency. Permanent members of the _ Paperwork Reduction Act Officer, Bureau of Board are the Science Advisor to the (202) 435–9575, or email: CFPB PRA@ Consumer Financial Protection. cfpb.gov. If you require this document President and the Administrator of the in an alternative electronic format, [FR Doc. 2019–18249 Filed 8–22–19; 8:45 am] National Oceanic and Atmospheric please contact CFPB_Accessibility@ BILLING CODE 4810–AM–P Administration, or his or her respective cfpb.gov. Please do not submit designees. Non-permanent members are comments to these email boxes. appointment from among persons DEPARTMENT OF DEFENSE SUPPLEMENTARY INFORMATION: eminent in the fields of basic sciences, engineering, ocean and environmental Title of Collection: Regulation I: Office of the Secretary Disclosure Requirements for Depository sciences, education, research Institutions Lacking Federal Deposit Charter Renewal of Department of management, international and security Insurance (12 CFR 1009). Defense Federal Advisory Committees affairs, health physics, health sciences, OMB Control Number: 3170–0062. or social sciences, with due regard given Type of Review: Extension without AGENCY: Department of Defense. to the equitable representation of change of a currently approved ACTION: Renewal of Federal Advisory scientists and engineers who are women collection. Committee. or who represent minority groups. At Affected Public: Private Sector. least one member of the Board shall be Estimated Number of Annual SUMMARY: The Department of Defense is a representative of environmental public Respondents: 167. publishing this notice to announce that interest groups, and one member shall be a representative of the interests of Estimated Annual Burden Hours: it is renewing the charter for the State governments. 4,609. Strategic Environmental Research and The Secretary of Defense and the Abstract: 12 CFR 1009 applies to all Development Program Scientific Advisory Board (‘‘the Board’’). Secretary of Energy, in consultation depository institutions lacking Federal with the Administrator of the deposit insurance. It requires the FOR FURTHER INFORMATION CONTACT: Jim Freeman, Advisory Committee Environmental Protection Agency, shall disclosure of certain insurance-related request that the head of the National information in periodic statements, Management Officer for the Department of Defense, 703–692–5952. Academy of Sciences, in consultation account records, locations where with the head of the National Academy deposits are normally received, and SUPPLEMENTARY INFORMATION: The of Engineering and the head of the advertising. This part also requires such Board’s charter is being renewed Institutes of Medicine of the National depository institutions to obtain a pursuant to 10 U.S.C. 2904 and in Academy of Sciences, nominate persons written acknowledgment from accordance with the Federal Advisory for appointment to the Advisory Board; depositors regarding the institution’s Committee Act (FACA) of 1972 (5 that the Council on Environmental lack of Federal deposit insurance. This U.S.C., Appendix) and 41 CFR 102– Quality nominate for appointment to the is a routine request for OMB to renew 3.50(a). The charter and contact Advisory Board at least one person who its approval of the collections of information for the Board’s Designated is a representative of environmental information currently approved under Federal Officer (DFO) are found at public interest groups; and that the this OMB control number. The Bureau https://www.facadatabase.gov/FACA/ National Association of Governors is not proposing any new or revised apex/FACAPublicAgencyNavigation. nominate for appointment to the collections of information pursuant to The Board provides the Secretary of Advisory Board at least one person who this request. Defense with independent advice and is representative of the interests of State Request for Comments: The Bureau recommendations on matters pertaining governments. Individual members will issued a 60-day Federal Register notice to the proposed research projects, be appointed according to DoD policy on June 7, 2019, 84 FR 26652, Docket including estimated costs, for research and procedures, and members will serve Number CFPB–2019–0032. Comments in and technology development related a term of service of two-to-four years were solicited and continue to be to environmental activities in excess of with annual renewals. invited on: (a) Whether the collection of $1,000,000 as referred to it by the One member, pursuant to 10 U.S.C. information is necessary for the proper Strategic Environmental Research and 2904(d) according to DoD policy and performance of the functions of the Development Program Council (‘‘the procedures, will serve as Chair of the Bureau, including whether the Council’’). The Board may make Board. No member, unless approved information will have practical utility; recommendations to the Council according to DoD policy and (b) The accuracy of the Bureau’s regarding technologies, research, procedures, may serve more than two estimate of the burden of the collection projects, programs, activities, and, if consecutive terms of service on the of information, including the validity of appropriate, funding within the scope of Board, to include its subcommittees, or the methods and the assumptions used; the Strategic Environmental Research serve on more than two DoD federal (c) Ways to enhance the quality, utility, and Development Program. In addition, advisory committees at one time. and clarity of the information to be the Board shall assist and advise the Members of the Board who are not collected; and (d) Ways to minimize the Council in identifying the full-time or permanent part-time Federal burden of the collection of information environmental data and analytical officers or employees, or members of the on respondents, including through the assistance activities that should be Armed Services will be appointed as use of automated collection techniques covered by the policies and procedures experts or consultants, pursuant to 5 or other forms of information prescribed pursuant to 10 U.S.C. U.S.C. 3109, to serve as special technology. Comments submitted in 2904(e). government employee members. Board

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members who are full-time or DATES: Consideration will be given to all Dated: August 13, 2019. permanent part-time Federal officers or comments received by October 22, 2019. Shelly E. Finke, employees, or members of the Armed Alternate OSD Federal Register, Liaison ADDRESSES: You may submit comments, Services will be appointed, pursuant to Officer, Department of Defense. 41 CFR 102–3.130(a), to serve as regular identified by docket number and title, by any of the following methods: [FR Doc. 2019–18179 Filed 8–22–19; 8:45 am] government employee members. BILLING CODE 5001–06–P All members of the Board are Federal eRulemaking Portal: http:// appointed to provide advice on the basis www.regulations.gov. Follow the of his or her best judgment without instructions for submitting comments. DEPARTMENT OF DEFENSE representing any particular point of Mail: Department of Defense, Office of view and in a manner that is free from the Chief Management Officer, Office of the Secretary conflict of interest. Except for Directorate for Oversight and Defense Advisory Committee on reimbursement of official Board-related Compliance, 4800 Mark Center Drive, travel and per diem, members serve Women in the Services; Notice of Mailbox #24, Suite 08D09, Alexandria, Federal Advisory Committee Meeting without compensation. VA 22350–1700. The public or interested organizations AGENCY: Under Secretary of Defense for may submit written statements to the Instructions: All submissions received Board membership about the Board’s must include the agency name, docket Personnel and Readiness, Department of mission and functions. Written number and title for this Federal Defense. statements may be submitted at any Register document. The general policy ACTION: Notice of Federal Advisory time or in response to the stated agenda for comments and other submissions Committee meeting. of planned meeting of the Board. All from members of the public is to make SUMMARY: written statements shall be submitted to these submissions available for public The Department of Defense the DFO for the Board, and this viewing on the internet at http:// (DoD) is publishing this notice to individual will ensure that the written www.regulations.gov as they are announce that the following Federal statements are provided to the received without change, including any Advisory Committee meeting of the membership for their consideration. personal identifiers or contact Defense Advisory Committee on Women information. in the Services (DACOWITS) will take Dated: August 20, 2019. place. Aaron T. Siegel, FOR FURTHER INFORMATION CONTACT: To DATES: Day 1—Open to the public Alternate OSD Federal Register Liaison request more information on this Officer, Department of Defense. Tuesday, September 17, 2019 from 8:00 proposed information collection or to a.m. to 11:30 a.m. Day 2—Open to the [FR Doc. 2019–18245 Filed 8–22–19; 8:45 am] obtain a copy of the proposal and public Wednesday, September 18, 2019 BILLING CODE 5001–06–P associated collection instruments, from 8:30 a.m. to 11:30 a.m. please write to the Office of the Defense Health Agency Information Management ADDRESSES: The address of the open DEPARTMENT OF DEFENSE Control Officer, 7700 Arlington meeting is the Key Bridge Marriott, Boulevard, Falls Church, VA 22042, located at 1401 Lee Highway, Arlington, Office of the Secretary Ms.Wanda Oka or call 703–681–1697. VA 22209. [Docket ID DOD–2019–HA–0101] FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Title; Colonel Toya J. Davis, U.S. Army, (703) Proposed Collection; Comment Associated Form; and OMB Number: 697–2122 (Voice), 703–614–6233 Request Department of Defense Active Duty/ (Facsimile), [email protected] Reserve Forces Dental Examination; DD (Email). Mailing address is 4800 Mark AGENCY: Office of the Assistant Form 2813; OMB Control Number 0720– Center Drive, Suite 04J25–01, Secretary of Defense for Health Affairs, 0022. Alexandria, VA 22350. Website: http:// DoD. Needs and Uses: The information dacowits.defense.gov. The most up-to- ACTION: Information collection notice. collection requirement is necessary to date changes to the meeting agenda can SUMMARY: In compliance with the obtain and record the dental health be found on the website. Paperwork Reduction Act of 1995, the status of members of the Armed Forces. SUPPLEMENTARY INFORMATION: This Defense Health Agency announces a This form is the means for civilian meeting is being held under the proposed public information collection dentists to record the results of their provisions of the Federal Advisory and seeks public comment on the findings and provide the information to Committee Act (FACA) of 1972 (5 provisions thereof. Comments are the member’s military organization. The U.S.C., Appendix, as amended), the invited on: Whether the proposed military organizations are required by Government in the Sunshine Act of collection of information is necessary Department of Defense policy to track 1976 (5 U.S.C. 552b, as amended), and for the proper performance of the the dental status of its members. 41 CFR 102–3.140 and 102–3.150. functions of the agency, including Affected Public: Individuals or Purpose of the Meeting: The purpose whether the information shall have households, Business or Other For- of the meeting is for the DACOWITS to practical utility; the accuracy of the Profit, and Not-For-Profit Institutions. receive written information and agency’s estimate of the burden of the briefings on the following topics: Annual Burden Hours: 37,500. proposed information collection; ways Women’s retention; Marine Corps to enhance the quality, utility, and Number of Respondents: 150,000. recruit training; women in ships; gender clarity of the information to be Responses per Respondent: 5. integration; pregnancy and parenthood collected; and ways to minimize the Annual Responses: 750,000. policies; domestic violence; and burden of the information collection on childcare resources. Additionally, the respondents, including through the use Average Burden per Response: 3 Committee will propose and vote on of automated collection techniques or minutes. their annual recommendations the other forms of information technology. Frequency: Annually and on occasion. Secretary of Defense.

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Agenda: Tuesday, September 17, ACTION: Notice of open Federal advisory comments from the public relevant to 2019, from 8:00 a.m. to 11:30 a.m.— committee meeting. these purposes. Welcome, Introductions, and Agenda: At this meeting the agenda Announcements; Request for SUMMARY: The Department of the Army will include the status of funding for Information Status Update; Briefings is publishing this notice to announce inland and coastal Navigation; status of and DACOWITS discussion on: Status the following Federal advisory the Inland Waterways Trust Fund of Gender Integrated USMC Recruit committee meeting of the U.S. Army (IWTF) and project updates; status of Training; Update on the Services’ Corps of Engineers, Inland Waterways the construction activities for Olmsted Maternity Uniforms; DoD Domestic Users Board (Board). This meeting is Locks and Dam Project, the Violence Data; and a Public Comment open to the public. For additional Monongahela River Locks and Dams 2, period. Wednesday, September 18, information about the Board, please 3, and 4 Project, the Chickamauga Lock 2019, from 8:30 a.m. to 11:30 a.m.— visit the committee’s website at http:// Project and the Kentucky Lock Project; Propose and Vote on 2019 www.iwr.usace.army.mil/Missions/ an update of project contingency recommendations. Navigation/InlandWaterways amounts in cost estimates; an update of Meeting Accessibility: Pursuant to 5 UsersBoard.aspx. the waterways Capital Investment U.S.C. 552b, as amended, and 41 CFR DATES: The Army Corps of Engineers, Strategy; and a briefing on the Value 102–3.140 through 102–3.165, this Inland Waterways Users Board will Engineering process of the Army Corps meeting is open to the public, subject to meet from 8 a.m. to 12 p.m. on of Engineers. the availability of space. September 12, 2019. Public registration Availability of Materials for the Written Statements: Pursuant to 41 will begin at 7:15 a.m. Meeting: A copy of the agenda or any CFR 102–3.140, and section 10(a)(3) of ADDRESSES: The Inland Waterways updates to the agenda for the September the FACA, interested persons may Users Board meeting will be conducted 12, 2019 meeting will be available. The submit a written statement to the at the Hilton Springfield Hotel, 6550 final version will be provided at the DACOWITS. Individuals submitting a Loisdale Road, Springfield, Virginia meeting. All materials will be posted to written statement must submit their 22150, 703–971–8900. the website after the meeting. Public Accessibility to the Meeting: statement no later than 5:00 p.m., FOR FURTHER INFORMATION CONTACT: Mr. Pursuant to 5 U.S.C. 552b, as amended, Monday, September 9, 2019 to Mr. Mark R. Pointon, the Designated Federal and 41 CFR 102–3.140 through 102–3.1 Robert Bowling, (703) 697–2122 (Voice), Officer (DFO) for the committee, in 65, and subject to the availability of 703–614–6233 (Facsimile), writing at the Institute for Water space, this meeting is open to the osd.pentagon.ousd-p-r.mbx.dacowits@ Resources, U.S. Army Corps of public. Registration of members of the mail.mil (Email). Mailing address is Engineers, ATTN: CEIWR–GM, 7701 public who wish to attend the meeting 4800 Mark Center Drive, Suite 04J25–01, Telegraph Road, Casey Building, will begin at 7:15 a.m. on the day of the Alexandria, VA 22350. If members of Alexandria, VA 22315–3868; by meeting. Seating is limited and is on a the public are interested in making an telephone at 703–428–6438; and by first-to-arrive basis. Attendees will be oral statement, a written statement must email at [email protected]. asked to provide their name, title, be submitted. If a statement is not Alternatively, contact Ms. Katelyn M. affiliation, and contact information to received by Monday, September 9, 2019, Noland, an Alternate Designated Federal prior to the meeting, which is the include email address and daytime Officer (ADFO), in writing at the telephone number at registration. Any subject of this notice, then it may not be Institute for Water Resources, U.S. Army provided to or considered by the interested person may attend the Corps of Engineers, ATTN: CEIWR–GW, meeting, file written comments or Committee during this quarterly 7701 Telegraph Road, Casey Building, business meeting. After reviewing the statements with the committee, or make Alexandria, VA 22315–3868; by verbal comments from the floor during written statements, the Chair and the telephone at 703–223–4297; and by DFO will determine if the requesting the public meeting, at the times, and in email at Katelyn.M.Noland@ the manner, permitted by the persons are permitted to make an oral usace.army.mil. presentation of their issue during an committee, as set forth below. SUPPLEMENTARY INFORMATION: The Special Accommodations: The open portion of this meeting. The DFO committee meeting is being held under meeting venue is fully handicap will review all timely submissions with the provisions of the Federal Advisory accessible, with wheelchair access. the DACOWITS Chair and ensure they Committee Act of 1972 (5 U.S.C., Individuals requiring special are provided to the members of the Appendix, as amended), the accommodations to access the public Committee. Government in the Sunshine Act of meeting or seeking additional Dated: August 20, 2019. 1976 (5 U.S.C. 552b, as amended), and information about public access Aaron T. Siegel, 41 CFR 102–3.150. procedures, should contact Mr. Pointon, Alternate OSD Federal Register Liaison Purpose of the Meeting: The Board is the committee DFO, or Ms. Noland, an Officer, Department of Defense. chartered to provide independent ADFO, at the email addresses or [FR Doc. 2019–18247 Filed 8–22–19; 8:45 am] advice and recommendations to the telephone numbers listed in the FOR BILLING CODE 5001–06–P Secretary of the Army on construction FURTHER INFORMATION CONTACT section, and rehabilitation project investments at least five (5) business days prior to on the commercial navigation features the meeting so that appropriate DEPARTMENT OF DEFENSE of the inland waterways system of the arrangements can be made. United States. At this meeting, the Written Comments or Statements: Department of the Army, Corps of Board will receive briefings and Pursuant to 41 CFR 102–3.105(j) and Engineers presentations regarding the investments, 102–3.140 and section 10(a)(3) of the Inland Waterways Users Board projects and status of the inland Federal Advisory Committee Act, the Meeting Notice waterways system of the United States public or interested organizations may and conduct discussions and submit written comments or statements AGENCY: Department of the Army, U.S. deliberations on those matters. The to the Board about its mission and/or Army Corps of Engineers, DoD. Board is interested in written and verbal the topics to be addressed in this public

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meeting. Written comments or DEPARTMENT OF EDUCATION helps the public understand the statements should be submitted to Mr. Department’s information collection [Docket No. ED–2019–ICCD–0072] Pointon, the committee DFO, or Ms. requirements and provide the requested Noland, a committee ADFO, via Agency Information Collection data in the desired format. ED is electronic mail, the preferred mode of Activities; Submission to the Office of soliciting comments on the proposed submission, at the addresses listed in Management and Budget for Review information collection request (ICR) that the FOR FURTHER INFORMATION CONTACT and Approval; Comment Request; is described below. The Department of section in the following formats: Adobe Generic Clearance for Federal Student Education is especially interested in Acrobat or Microsoft Word. The Aid Customer Satisfaction Surveys public comment addressing the comment or statement must include the and Focus Groups Master Plan following issues: (1) Is this collection author’s name, title, affiliation, address, necessary to the proper functions of the and daytime telephone number. Written AGENCY: Federal Student Aid (FSA), Department of Education (ED). Department; (2) will this information be comments or statements being processed and used in a timely manner; ACTION: Notice. submitted in response to the agenda set (3) is the estimate of burden accurate; forth in this notice must be received by SUMMARY: In accordance with the (4) how might the Department enhance the committee DFO or ADFO at least Paperwork Reduction Act of 1995, ED is the quality, utility, and clarity of the five (5) business days prior to the proposing a revision of an existing information to be collected; and (5) how meeting so that they may be made information collection. might the Department minimize the available to the Board for its DATES: Interested persons are invited to burden of this collection on the consideration prior to the meeting. submit comments on or before respondents, including through the use Written comments or statements September 23, 2019. of information technology. Please note received after this date may not be ADDRESSES: To access and review all the that written comments received in provided to the Board until its next documents related to the information response to this notice will be meeting. Please note that because the collection listed in this notice, please considered public records. Board operates under the provisions of use http://www.regulations.gov by the Federal Advisory Committee Act, as Title of Collection: Generic Clearance searching the Docket ID number ED– for Federal Student Aid Customer amended, all written comments will be 2019–ICCD–0072. Comments submitted treated as public documents and will be Satisfaction Surveys and Focus Groups in response to this notice should be Master Plan. made available for public inspection. submitted electronically through the Verbal Comments: Members of the Federal eRulemaking Portal at http:// OMB Control Number: 1845–0045. public will be permitted to make verbal www.regulations.gov by selecting the Type of Review: A revision of an comments during the Board meeting Docket ID number or via postal mail, existing information collection. only at the time and in the manner commercial delivery, or hand delivery. Respondents/Affected Public: allowed herein. If a member of the If the regulations.gov site is not Individuals or Households. public is interested in making a verbal available to the public for any reason, comment at the open meeting, that ED will temporarily accept comments at Total Estimated Number of Annual individual must submit a request, with [email protected]. Please include the Responses: 650,000. a brief statement of the subject matter to docket ID number and the title of the Total Estimated Number of Annual be addressed by the comment, at least information collection request when Burden Hours: 50,000. three business (3) days in advance to the requesting documents or submitting Abstract: The Higher Education committee DFO or ADFO, via electronic comments. Please note that comments Amendments of 1998 established mail, the preferred mode of submission, submitted by fax or email and those Federal Student Aid (FSA) as the first at the addresses listed in the FOR submitted after the comment period will Performance-Based Organization (PBO). FURTHER INFORMATION CONTACT section. not be accepted. Written requests for The committee DFO and ADFO will log information or comments submitted by One purpose of the PBO is to improve each request to make a comment, in the postal mail or delivery should be service to student and other participants order received, and determine whether addressed to the Director of the in the student financial assistance the subject matter of each comment is Information Collection Clearance programs authorized under title IV of relevant to the Board’s mission and/or Division, U.S. Department of Education, the Higher Education Act of 1965, as the topics to be addressed in this public 550 12th Street SW, PCP, Room 9086, amended, including making those meeting. A 15-minute period near the Washington, DC 20202–0023. programs more understandable to end of the meeting will be available for FOR FURTHER INFORMATION CONTACT: For students and their parents. To do that, verbal public comments. Members of specific questions related to collection FSA has committed to ensuring that all the public who have requested to make activities, please contact Beth people receive service that matches or a verbal comment and whose comments Grebeldinger, 202–377–4018. exceeds the best service available in the have been deemed relevant under the SUPPLEMENTARY INFORMATION: The private sector. The legislation’s requires process described above, will be allotted Department of Education (ED), in establish an on-going need for FSA to be no more than three (3) minutes during accordance with the Paperwork engaged in an interactive process of this period, and will be invited to speak Reduction Act of 1995 (PRA) (44 U.S.C. collecting information and using it to in the order in which their requests 3506(c)(2)(A)), provides the general improve program services and were received by the DFO and ADFO. public and Federal agencies with an processes. The use of customer surveys Dated: August 16, 2019. opportunity to comment on proposed, and focus groups allows FSA to gather revised, and continuing collections of R.D. James, that information from the affected information. This helps the Department parties in a timely manner so as to Assistant Secretary of the Army (Civil Works). assess the impact of its information improve communications with our [FR Doc. 2019–18197 Filed 8–22–19; 8:45 am] collection requirements and minimize product users. BILLING CODE 3720–58–P the public’s reporting burden. It also

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Dated: August 20, 2019. The base charge decreased by $3.3 rate-setting methodology for BCP Kate Mullan, million to $66.4 million, a 4.8% calculates an annual base charge rather PRA Coordinator, Information Collection reduction from FY 2019. The reduction than a unit rate for Hoover Dam Clearance Program, Information Management is primarily the result of an increase in hydropower. The base charge recovers Branch, Office of the Chief Information non-power revenue projections for the an annual revenue requirement that Officer. Hoover Dam visitor center. includes projected costs of investment [FR Doc. 2019–18236 Filed 8–22–19; 8:45 am] DATES: The FY 2020 base charge and repayment, interest, operations, BILLING CODE 4000–01–P rates will be effective October 1, 2019, maintenance, replacements, payments and will remain in effect through to States, and Hoover Dam visitor September 30, 2020. services. Non-power revenue DEPARTMENT OF ENERGY FOR FURTHER INFORMATION CONTACT: Mr. projections such as water sales, Hoover Dam visitor revenue, ancillary services, Western Area Power Administration Ronald E. Moulton, Regional Manager, Desert Southwest Region, Western Area and late fees help offset these projected Boulder Canyon Project Power Administration, P.O. Box 6457, costs. Customers are billed a percentage Phoenix, AZ 85005–6457, (602) 605– of the base charge in proportion to their AGENCY: Western Area Power 2525, or [email protected]; or Ms. Hoover power allocation. Rates are Administration, DOE. Tina Ramsey, Rates Manager, Desert calculated for comparative purposes but ACTION: Notice concerning fiscal year Southwest Region, Western Area Power are not used to determine the charges 2020 Boulder Canyon Project base Administration, (602) 605–2565, or for service. charge and rates for electric service. [email protected]. Rate Schedule BCP–F10 and the BCP SUMMARY: The Assistant Secretary for SUPPLEMENTARY INFORMATION: On June 6, Electric Service Agreement require Electricity confirms, approves, and 2018, the Federal Energy Regulatory WAPA to determine the annual base places into effect, on a final basis, the Commission (FERC) confirmed and charge and rates for the next fiscal year Boulder Canyon Project (BCP) base approved Rate Schedule BCP–F10 under before October 1 of each year. The FY charge and rates for fiscal year (FY) Rate Order No. WAPA–178 on a final 2019 BCP base charge and rates expire 2020 under Rate Schedule BCP–F10. basis through September 30, 2022.1 The on September 30, 2019.

COMPARISON OF BASE CHARGE AND RATES

Amount Percent FY 2019 FY 2020 change change

Base Charge ($) ...... $69,741,657 $66,419,402 ¥$3,322,255 ¥4.8 Composite Rate (mills/kWh) ...... 18.92 18.08 ¥0.84 ¥4.4 Energy Rate (mills/kWh) ...... 9.46 9.04 ¥0.42 ¥4.4 Capacity Rate ($/kW-Mo) ...... $1.88 $1.75 ¥$0.13 ¥6.9

A $5.1 million increase in non-power Public Notice and Comment 4. On July 8, 2019, the consultation revenue projections primarily resulting and comment period ended, and WAPA The notice of the proposed FY 2020 from the resumption of typical revenues received four comments. The comments base charge and rates for electric service appear below, paraphrased where following completion of renovations to was published consistent with appropriate without compromising their the Hoover Dam visitor center and $1.3 procedures set forth in 10 CFR part 903 million in prior year carryover meaning. and 10 CFR part 904. WAPA took the Comment: A commenter thanked contributed to the FY 2020 base charge following steps to involve customers reduction. WAPA for lowering its FY 2020 and interested parties in the rate operations and maintenance budget and The Bureau of Reclamation’s FY 2020 process: requested additional detail on the budget is increasing by $3.7 million. 1. On April 9, 2019, a Federal budget. Higher operation and maintenance Register notice (84 FR 14111) Response: WAPA’s operations and expenses of $1.8 million and announced the proposed base charge maintenance budget for FY 2020 is replacement costs of $1.4 million and rates and initiated the 90-day public $8,307,206 and is comprised of facility account for most of this increase. consultation and comment period. expense totaling $2,491,204 and WAPA’s FY 2020 budget is decreasing 2. On May 9, 2019, WAPA held a systemwide expense totaling by $600,000 due to a $400,000 reduction public information forum in Phoenix, $5,816,002. Further detail on the budget in dispatching and substation Arizona. WAPA’s representatives is included in WAPA’s Ten-Year maintenance expenses and a $200,000 explained the proposed base charge and Operating Plan, which is available on reduction in replacement costs. rates, provided handouts, and were WAPA’s website. The FY 2020 composite and energy available to answer questions. Comment: A commenter asked for rates are decreasing by 4.4 percent. The 3. On June 10, 2019, WAPA held a information about Reclamation’s reduction of the base charge contributes public comment forum in Phoenix, administrative and general expense to these decreases. The capacity rate is Arizona, to provide an opportunity for refund adjustment. decreasing by 6.9 percent. This decline customers and interested parties to Response: Reclamation receives a is due to a reduction in the base charge comment and ask questions for the credit from appropriations for its post- and an increase in capacity projections. record. 911 security contract costs. Reclamation

1 Order Confirming and Approving Rate Schedule on a Final Basis, FERC Docket No. EF18–1–000, 163 FERC ¶ 62,154 (2018).

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has historically budgeted $200,000 consistent with the procedures for meeting of the Children’s Health annually for this credit, which was public participation in rate adjustments Protection Advisory Committee included in the administrative and as required under 10 CFR part 904.7(e) (CHPAC) will be held September 5 and general expense category. Due to the and the BCP Electric Service Agreement. 6, 2019 at Milken Institute School of variability of the credit amount, The BCP Electric Service Agreement Public Health, located at 950 New Reclamation is no longer budgeting for goes on to state that in years other than Hampshire Ave NW, Washington, DC this item beginning in FY 2020. the first and fifth years of a rate 20052. Due to unforeseen administrative Comment: A commenter asked for the schedule approved by the Federal circumstances, EPA is announcing this balance of Post-Retirement Benefits Energy Regulatory Commission on a meeting with less than 15 calendar days’ (PRB) collections in the accounts for the final basis, adjustments to the base notice. The CHPAC advises the current and previous marketing periods. charge shall be effective upon approval Environmental Protection Agency (EPA) Response: While there are not by the Deputy Secretary of Energy. on science, regulations and other issues separate accounts for PRB collections, Under the Department of Energy relating to children’s environmental Reclamation and WAPA identified PRB Organization Act, the Secretary of health. balances for the two marketing periods Energy holds plenary authority over DATES: September 5, 2019 from 9 a.m. to requested. The PRB balance for the Department of Energy affairs with 5 p.m. and September 6, 2019 from 9 marketing period concluded in FY 2017 respect to the Power Marketing a.m. to 1 p.m. totals $30,929,279. As of the end of FY Administrations. By Delegation Order ADDRESSES: 950 New Hampshire Ave. 2018, the PRB balance for the marketing No. 00–002.00Q, effective November 1, NW, Washington, DC 20052. period beginning in FY 2018 totals 2018, the Secretary of Energy delegated $1,729,545. to the Under Secretary of Energy the FOR FURTHER INFORMATION CONTACT: Nica Comment: A commenter asked why authority vested in the Secretary with Louie, Office of Children’s Health Reclamation’s PRB budget increased in respect to WAPA. By Redelegation Protection, U.S. EPA, MC 1107T, 1200 FY 2020. Order No. 00–002.10D, effective June 4, Pennsylvania Avenue NW, Washington, Response: There are three 2019, the Under Secretary of Energy DC 20460, (202) 564–7633 or components of PRB: (1) Civil Service delegated to the Assistant Secretary for [email protected]. Retirement System and Federal Electricity the same authority with SUPPLEMENTARY INFORMATION: The Employee Retirement System costs, (2) respect to WAPA.2 This rate action is meetings of the CHPAC are open to the Federal Employee Health Benefits issued under the Redelegation Order public. An agenda will be posted to (FEHB) costs, and (3) Federal Employee and DOE’s procedures for public https://www.epa.gov/children/ Group Life Insurance costs. PRB budget participation in rate adjustments set childrens-health-protection-advisory- projections are calculated using a five- forth at 10 CFR part 903 and 10 CFR committee-chpac. year average of expenditures. The five- part 904.3 Access and Accommodations: For year average included in the FY 2020 Following DOE’s review of WAPA’s information on access or services for PRB budget rose primarily due to an proposal, I hereby confirm, approve, individuals with disabilities, please increase in FEHB costs in FY 2018. PRB and place the FY 2020 base charge and contact Nica Louie at 202–564–7633 or historical expenditures and projections rates for BCP electric service, under Rate [email protected]. are available on WAPA’s website. Schedule BCP–F10, into effect on a final Dated: July 10, 2019. Certification of Rates basis through September 30, 2020. Nica Louie, WAPA’s Administrator certified that Dated: August 19, 2019. Environmental Health Scientist. the FY 2020 base charge and rates under Bruce J. Walker, [FR Doc. 2019–18237 Filed 8–22–19; 8:45 am] Rate Schedule BCP–F10 are the lowest Assistant Secretary for Electricity. BILLING CODE 6560–50–P possible rates, consistent with sound [FR Doc. 2019–18220 Filed 8–22–19; 8:45 am] business principles. The base charge BILLING CODE 6450–01–P and rates were developed following ENVIRONMENTAL PROTECTION administrative policies and applicable AGENCY laws. ENVIRONMENTAL PROTECTION [ER–FRL–9046–4] Availability of Information AGENCY Environmental Impact Statements; Information about the rate process to [FRL–9997–93–OA] Notice of Availability establish the FY 2020 base charge and rates was made available on WAPA’s Notice of Meeting of the EPA Responsible Agency: Office of Federal website at https://www.wapa.gov/ Children’s Health Protection Advisory Activities, General Information 202– regions/DSW/Rates/Pages/boulder- Committee (CHPAC) 564–5632 or https://www.epa.gov/ canyon-rates.aspx. AGENCY: Environmental Protection nepa/. Weekly receipt of Environmental Impact Legal Authority Agency (EPA). ACTION: Notice of meeting. Statements 10 CFR part 904.7(e) requires annual Filed 08/12/2019 Through 08/16/2019 review of the BCP base charge and an SUMMARY: Pursuant to the provisions of Pursuant to 40 CFR 1506.9 adjustment, either upward or the Federal Advisory Committee Act, Notice downward, when necessary and notice is hereby given that the next administratively feasible to assure Section 309(a) of the Clean Air Act sufficient revenues to effect payment of 2 Delegation Orders No. 00–002–00Q and 00– requires that EPA make public its all costs and financial obligations 002.10D both clarify that this delegation of comments on EISs issued by other associated with the project. The authority is ‘‘In addition’’ to the authority to Federal agencies. EPA’s comment letters approve and place into effect on an interim basis Administrator provided all Contractors WAPA’s power and transmission rates. on EISs are available at: https:// an opportunity to comment on the 3 50 FR 37835 (Sept. 18, 1985) and 84 FR 5347 cdxnodengn.epa.gov/cdx-enepa-public/ proposed base charge adjustment (Feb. 21, 2019). action/eis/search.

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EIS No. 20190194, Final, NSF, AQ, Contact: Dr. Gretchen Ehlinger 904– Pollution Prevention Division (BPPD) Continuation and Modernization of 232–1682, Revision to FR Notice (7511P), main telephone number: (703) McMurdo Station Area Activities, Published 07/05/2019; Extending the 305–7090, email address: Review Period Ends: 10/15/2019, Comment Period from 08/19/2019 to [email protected]; or Michael Contact: Dr. Polly A. Penhale 703– 09/03/2019. Goodis, Registration Division (RD) 292–7420. Dated: August 19, 2019. (7505P), main telephone number: (703) EIS No. 20190195, Final Supplement, Robert Tomiak, 305–7090, email address: BLM, NV, Mount Hope Project Final [email protected]. The mailing Director, Office of Federal Activities. Supplemental Environmental Impact address for each contact person is: Statement, Review Period Ends: 09/ [FR Doc. 2019–18154 Filed 8–22–19; 8:45 am] Office of Pesticide Programs, 23/2019, Contact: Kevin Hurrell 775– BILLING CODE 6560–50–P Environmental Protection Agency, 1200 635–4035. Pennsylvania Ave. NW, Washington, DC EIS No. 20190196, Final Supplement, 20460–0001. As part of the mailing ENVIRONMENTAL PROTECTION USFS, SC, AP Loblolly Pine Removal address, include the contact person’s AGENCY and Restoration Project, Review name, division, and mail code. The Period Ends: 09/23/2019, Contact: [EPA–HQ–OPP–2019–0369; FRL–9998–37] division to contact is listed at the end Victor Wyant 864–638–9568. of each application summary. EIS No. 20190197, Final, FHWA, NV, Pesticide Product Registrations; SUPPLEMENTARY INFORMATION: Interstate 80/Interstate 580/US Receipt of Applications for a New Site Highway 395 Freeway-to-Freeway I. General Information AGENCY: Interchange and Connecting Road Environmental Protection Improvements, Contact: Abdelmoez Agency (EPA). A. Does this action apply to me? Abdalla 775–687–1231, Pursuant to ACTION: Notice. You may be potentially affected by 23 U.S.C. 139(n)(2), FHWA has issued SUMMARY: EPA has received applications this action if you are an agricultural a combined FEIS and ROD. Therefore, to add a new site (hemp) to the labeling producer, food manufacturer, or the 30-day wait/review period under of currently registered pesticide pesticide manufacturer. The following NEPA does not apply to this action. products that contain active ingredients list of North American Industrial EIS No. 20190198, Draft Supplement, with established tolerance exemptions. Classification System (NAICS) codes is RUS, SC, McClellanville 115 kV Due to EPA’s expectation that these not intended to be exhaustive, but rather Transmission Project, Comment initial applications involving hemp may provides a guide to help readers Period Ends: 10/22/2019, Contact: be of significant interest to the public determine whether this document Lauren Rayburn 202–695–2540. and to enhance transparency, EPA is applies to them. Potentially affected EIS No. 20190199, Final, FHWA, AL, hereby providing notice of receipt and entities may include: Project No. DPI–0030(005), I–10 opportunity to comment, although not • Crop production (NAICS code 111). Mobile River Bridge and Bayway, required pursuant to the Federal • Animal production (NAICS code Mobile and Baldwin Counties, Insecticide, Fungicide, and Rodenticide 112). Alabama, Contact: Mr. Mark D. Act (FIFRA). • Food manufacturing (NAICS code Barlett, P.E. 334–274–6350, Pursuant DATES: Comments must be received on 311). to 23 U.S.C. 139(n)(2), FHWA has • issued a combined FEIS and ROD. or before September 23, 2019. Pesticide manufacturing (NAICS Therefore, the 30-day wait/review ADDRESSES: Submit your comments, code 32532). period under NEPA does not apply to identified by the EPA Registration If you have any questions regarding this action. Number of interest as shown in the body the applicability of this action to a EIS No. 20190200, Final, BR, CA, B.F. of this document, by one of the particular entity, consult the person Sisk Dam Safety of Dams Modification following methods: listed under FOR FURTHER INFORMATION Project, Review Period Ends: 09/23/ • Federal eRulemaking Portal: http:// CONTACT for the division listed at the 2019, Contact: Jamie LeFevre 916– www.regulations.gov. Follow the online end of the application summary of 978–5035. instructions for submitting comments. interest. EIS No. 20190201, Final, BLM, UT, Do not submit electronically any B. What should I consider as I prepare Grand Staircase-Escalante National information you consider to be my comments for EPA? Monument-Grand Staircase, Confidential Business Information (CBI) Kaiparowits, and Escalante Canyon or other information whose disclosure is 1. Submitting CBI. Do not submit this Units and Federal Lands previously restricted by statute. information to EPA through included in the Monument that are • Mail: OPP Docket, Environmental regulations.gov or email. Clearly mark excluded from the Boundaries Draft Protection Agency Docket Center (EPA/ the part or all of the information that Resource Management Plans and DC), (28221T), 1200 Pennsylvania Ave. you claim to be CBI. For CBI Final Environmental Impact NW, Washington, DC 20460–0001. information in a disk or CD–ROM that • Statement, Review Period Ends: 09/ Hand Delivery: To make special you mail to EPA, mark the outside of the 23/2019, Contact: Harry Barber 435– arrangements for hand delivery or disk or CD–ROM as CBI and then 644–1200. delivery of boxed information, please identify electronically within the disk or follow the instructions at http:// CD–ROM the specific information that Amended Notice www.epa.gov/dockets/contacts.html. is claimed as CBI. In addition to one EIS No. 20190155, Revised Draft, Additional instructions on complete version of the comment that USACE, FL, Lake Okeechobee commenting or visiting the docket, includes information claimed as CBI, a Watershed Restoration Project along with more information about copy of the comment that does not Revised Draft Integrated Project dockets generally, is available at http:// contain the information claimed as CBI Implementation Report and www.epa.gov/dockets. must be submitted for inclusion in the Environmental Impact Statement, FOR FURTHER INFORMATION CONTACT: public docket. Information so marked Comment Period Ends: 09/03/2019, Robert McNally, Biopesticides and will not be disclosed except in

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accordance with procedures set forth in a notice of each application for amyloliquefaciens strain F727. Product 40 CFR part 2. registration of any pesticide [. . .] if it type: Fungicide. FFDCA clearance: 40 2. Tips for preparing your comments. would entail a changed use pattern.’’ As CFR 180.1347. Contact: BPPD. When preparing and submitting your terrestrial outdoor and residential 7. EPA Registration Number: 91865–1. comments, see the commenting tips at outdoor use patterns (40 CFR 158.100) Applicant: Hawthorne Hydroponics http://www.epa.gov/dockets/ were previously assessed and approved LLC, D/B/A General Hydroponics, 2877 comments.html. for the active ingredients listed below Giffen Ave., Santa Rosa, CA 95407. 3. Environmental justice. EPA seeks to and because hemp, as proposed for Active ingredients: Soybean Oil, Garlic achieve environmental justice, the fair addition to the labels of the products Oil, and Capsicum Oleoresin Extract. treatment and meaningful involvement below, falls under these use patterns, Product type: Insecticide and Repellent. of any group, including minority and/or EPA does not consider the use patterns FFDCA clearances: 40 CFR 180.950(c) low-income populations, in the to be changed with these applications. and 40 CFR 180.1165. Contact: BPPD. development, implementation, and Thus, EPA is not statutorily required to 8. EPA Registration Number: 91865–2. enforcement of environmental laws, provide an opportunity to comment and Applicant: Hawthorne Hydroponics regulations, and policies. To help is doing so here because of the potential LLC, D/B/A General Hydroponics, 2877 address potential environmental justice significant interest from the public in Giffen Ave., Santa Rosa, CA 95407. issues, EPA seeks information on any these initial applications and in Active ingredient: Potassium Salts of groups or segments of the population furtherance of being completely Fatty Acids. Product type: Insecticide, who, as a result of their location, transparent about these applications. Fungicide, and Miticide. FFDCA cultural practices, or other factors, may For future pesticide registration clearance: 40 CFR 180.1068. Contact: have atypical or disproportionately high applications that are similar to these RD. and adverse human health impacts or applications and that are expected to be 9. EPA Registration Number: 91865–3. environmental effects from exposure to submitted with more regularity, EPA is Applicant: Hawthorne Hydroponics the pesticides discussed in this not planning to notify the public of their LLC, D/B/A General Hydroponics, 2877 document, compared to the general receipt. Giffen Ave., Santa Rosa, CA 95407. population. 1. EPA Registration Number: 70310–5. Active ingredient: Bacillus II. Registration Applications Applicant: Agro Logistic Systems, Inc., amyloliquefaciens strain D747. Product P.O. Box 5799, Diamond Bar, CA 91765. type: Fungicide and Bactericide. FFDCA When the Agriculture Improvement Active ingredients: Azadirachtin and clearance: 40 CFR 180.1308. Contact: Act of 2018 (2018 Farm Bill) was signed Neem Oil. Product type: Insecticide, BPPD. into law on December 20, 2018, hemp, Miticide, Fungicide, and Nematicide. 10. EPA Registration Number: 91865– defined therein as the plant Cannabis FFDCA clearances: 40 CFR 180.1119 4. Applicant: Hawthorne Hydroponics sativa L. and any part of that plant with and 40 CFR 180.1291. Contact: BPPD. a delta-9-tetrahydrocannabinol LLC, D/B/A General Hydroponics, 2877 2. EPA Registration Number: 70310–7. Giffen Ave., Santa Rosa, CA 95407. concentration of not more than 0.3% on Applicant: Agro Logistic Systems, Inc., a dry weight basis, was removed from Active ingredient: Azadirachtin. Product P.O. Box 5799, Diamond Bar, CA 91765. type: Insect Growth Regulator and the Controlled Substances Act. Active ingredients: Azadirachtin and Consequently, interest in hemp Repellent. FFDCA clearance: 40 CFR Neem Oil. Product type: Insecticide, 180.1119. Contact: BPPD. production has substantially increased Miticide, Fungicide, and Nematicide. over the last several months and the FFDCA clearances: 40 CFR 180.1119 Authority: 7 U.S.C. 136 et seq. availability of particular tools, such as and 40 CFR 180.1291. Contact: BPPD. Dated: August 13, 2019. pesticides registered under FIFRA, will 3. EPA Registration Number: 70310–8. Robert McNally, likely be essential to supporting the Applicant: Agro Logistic Systems, Inc., Director, Biopesticides and Pollution success of this industry going forward. P.O. Box 5799, Diamond Bar, CA 91765. Prevention Division, Office of Pesticide Because of these recent developments Active ingredients: Azadirachtin and Programs. with regard to hemp, EPA has received Neem Oil. Product type: Insecticide, [FR Doc. 2019–18151 Filed 8–22–19; 8:45 am] applications to add hemp as a new site Miticide, Fungicide, and Nematicide. BILLING CODE 6560–50–P to the labeling of some currently FFDCA clearances: 40 CFR 180.1119 registered pesticide products. These and 40 CFR 180.1291. Contact: BPPD. registered pesticide products contain 4. EPA Registration Number: 70310– ENVIRONMENTAL PROTECTION active ingredients for which EPA 11. Applicant: Agro Logistic Systems, AGENCY previously determined the residues will Inc., P.O. Box 5799, Diamond Bar, CA be safe under any reasonably foreseeable 91765. Active ingredient: Neem Oil. [EPA–HQ–OGC–2019–0478; FRL 9998–70– OGC] circumstances and, pursuant to the Product type: Insecticide, Miticide, and Federal Food, Drug, and Cosmetic Act Fungicide. FFDCA clearance: 40 CFR Proposed Stipulated Partial Settlement (FFDCA), established tolerance 180.1291. Contact: BPPD. Agreement, Endangered Species Act exemptions, as indicated below, for 5. EPA Registration Number: 84059–3. Claims those residues in or on all raw Applicant: Marrone Bio Innovations, D/ agricultural or food commodities. As B/A Marrone Bio Innovations, Inc., 1540 AGENCY: Environmental Protection these initial applications that involve Drew Ave., Davis, CA 95618. Active Agency (EPA). hemp may be of significant interest to ingredient: Extract of Reynoutria ACTION: Notice of proposed stipulated the public and to enhance transparency, sachalinensis. Product type: Fungicide partial settlement agreement; request for EPA is hereby providing notice of and Fungistat. FFDCA clearance: 40 public comment. receipt and opportunity to comment on CFR 180.1259. Contact: BPPD. these applications. Notice of receipt of 6. EPA Registration Number: 84059– SUMMARY: In accordance with the EPA these applications does not imply a 28. Applicant: Marrone Bio Innovations, Administrator’s October 16, 2017, decision by EPA on these applications. D/B/A Marrone Bio Innovations, Inc., Directive Promoting Transparency and FIFRA section 3(c)(4) requires EPA to 1540 Drew Ave., Davis, CA 95618. Public Participation in Consent Decrees ‘‘publish in the Federal Register [. . .] Active ingredient: Bacillus and Settlement Agreements, notice is

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hereby given of a proposed stipulated publish any comment received to its necessary as a result of those effects partial settlement agreement in the public docket. Do not submit determinations. Additional deadlines United States District Court for the electronically any information you for completing ESA section 7(a)(2) Northern District of California in the consider to be Confidential Business effects determinations, compiled into a case of Center for Biological Diversity et. Information (CBI) or other information biological evaluation, included in al., v. United States Environmental whose disclosure is restricted by statute. Paragraphs 2.a. and 3.a., respectively, Protection Agency et al., No. 3:11 cv Multimedia submissions (audio, video, would be August 14, 2021, for atrazine 0293 (N.D.Ca.). Plaintiffs filed the etc.) must be accompanied by a written and simazine, and August 14, 2024, for original case on January 20, 2011, comment. The written comment is brodifacoum, bromadiolone, warfarin, asserting a single claim against EPA for considered the official comment and and zinc phosphide, and, as allegedly violating section 7(a)(2) of the should include discussion of all points appropriate, request initiation of any Endangered Species Act (ESA) by failing you wish to make. The EPA generally ESA consultations with NMFS and/or to initiate and reinitiate consultation will not consider comments or comment USFWS. with the Services with respect to its contents located outside of the primary The agreement also includes ongoing oversight of 382 pesticide submission (i.e., on the web, cloud, or statements of EPA’s intent to take active ingredients. After several motions other file sharing system). For certain actions, in addition to the to narrow the case and an appeal to the additional submission methods, please deadlines associated with specific Ninth Circuit Court of Appeals, the contact the person identified in the FOR biological evaluations, including: (1) To plaintiffs filed their fourth amended FURTHER INFORMATION CONTACT section. complete draft biological evaluations no complaint on June 29, 2018 for failure For the full EPA public comment policy, later than one year prior to the deadline to initiate ESA section 7(a)(2) information about CBI or multimedia for the final biological evaluations, as consultation for certain pesticide submissions, and general guidance on well to provide notice and a 60-day products containing 35 pesticide active making effective comments, please visit opportunity for public comment on any ingredients. After several settlement http://www2.epa.gov/dockets/ such draft, (2) consistent with current discussions, the parties reached a partial commenting-epa-dockets. practice, EPA would, within 30 business days of receipt from the USFWS of any agreement in this case. The parties are FOR FURTHER INFORMATION CONTACT: draft biological opinions on the effects proposing to reach a settlement in the Michele Knorr, Pesticides and Toxic of chlorpyrifos and diazinon, make the form of a stipulated partial settlement Substances Law Office (2333A), Office draft available to the public for a 60-day agreement. Among other provisions, this of General Counsel, U.S. Environmental comment period, (3) consistent with agreement would set a February 14, Protection Agency, 1200 Pennsylvania current practice, conduct nationwide- 2021, deadline for EPA to complete ESA Ave. NW, Washington, DC 20460; scale effects determinations, and (4) to section 7(a)(2) effects determination for telephone: (202) 564–5631; email carbaryl and methomyl, and, as complete biological evaluations for address: [email protected]. glyphosate and propazine on the same appropriate, request initiation of any SUPPLEMENTARY INFORMATION: ESA section 7(a)(2) consultations with schedule as simazine and atrazine. The stipulated partial settlement also the National Marine Fisheries Service I. Additional Information About the includes provisions that would require (NMFS) and/or the United States Fish Proposed Stipulated Settlement EPA to meet specific milestones and Wildlife Service (USFWS) that EPA Agreement connected to the deadlines in may determine to be necessary as a On January 20, 2011, Plaintiffs (non- Paragraphs 1.a, 2.a, and 3.a. These result of those effects determinations. governmental environmental provisions included in Paragraphs 1.b., Additional deadlines would include organizations) filed a complaint in the 2.b., and 3.b would include: (1) No later August 14, 2021, for atrazine and United States District Court in the than 90 days prior to EPA’s commitment simazine, and August 14, 2024, for Northern District of California asserting to complete draft biological evaluations, brodifacoum, bromadiolone, warfarin, a single claim against EPA for allegedly EPA would provide a status report to and zinc phosphide for EPA to complete violating section 7(a)(2) of the ESA by the Court and other parties on its effects determinations, and, as failing to initiate and reinitiate progress toward completing these drafts; appropriate, request initiation of any consultation with the Services with and (2) EPA would provide a status ESA consultations with NMFS and/or respect to 382 pesticide active report to the Court and the parties 90 USFWS. The stipulated partial ingredients. After motions practice and days prior to the deadline to complete settlement agreement would also an appeal to the Ninth Circuit Court of the final biological evaluations. include a meet and confer deadline of Appeals, the plaintiffs filed their fourth Additionally, Paragraphs 1.c., 2.c., and August 30, 2021, for all parties to amended complaint on June 29, 2018 for 3.c. would include provisions for discuss possible resolution of the failure to initiate consultation under modifying the final biological remaining issues in this case. ESA section 7(a)(2) for certain pesticide evaluation deadlines. The stipulated DATES: Written comments on the products containing 35 pesticide active partial settlement agreement would also proposed stipulated partial settlement ingredients. After several settlement include a meet and confer deadline of agreement must be received by discussions, the parties reached a partial August 30, 2021 for all parties to discuss September 23, 2019. agreement in this case. Specifically, resolving the remaining issues in this ADDRESSES: Submit your comments, Paragraph 1.a. of the proposed case. identified by Docket ID number EPA– stipulated partial settlement provides For a period of thirty (30) days HQ–OGC–2019–0478 online at that EPA would agree to complete ESA following the date of publication of this www.regulations.gov (EPA’s preferred section 7(a)(2) effects determinations, notice, the Agency will accept written method). For comments submitted at compiled into a biological evaluation, comments relating to the proposed www.regulations.gov, follow the online by February 14, 2021, for carbaryl and stipulated partial settlement from instructions for submitting comments. methomyl, and, as appropriate, request persons who are not named as parties to Once submitted, comments cannot be initiation of any ESA section 7(a)(2) the litigation in question. If so edited or removed from consultations with the NMFS and/or the requested, EPA will also consider www.regulations.gov. The EPA may USFWS that EPA may determine to be holding a public hearing on whether to

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agree to the proposed joint stipulation be placed in EPA’s electronic public ENVIRONMENTAL PROTECTION and stipulated notice of dismissal. EPA docket but will be available only in AGENCY or the Department of Justice may printed, paper form in the official public [FRL–9997–98–ORD] withdraw or withhold consent to the docket. Although not all docket proposed stipulated partial settlement if materials may be available Ambient Air Monitoring Reference and the comments disclose facts or electronically, you may still access any Equivalent Methods; Designation of considerations that indicate that such of the publicly available docket One New Equivalent Method consent is inappropriate, improper, materials through the EPA Docket inadequate, or inconsistent with the Center. AGENCY: Office of Research and requirements of the ESA or FIFRA. Development; Environmental Protection Unless EPA or the Department of Justice B. How and to whom do I submit Agency (EPA). determines that consent should be comments? ACTION: Notice of the designation of a withdrawn, the terms of the proposed new equivalent method for monitoring You may submit comments as stipulation and stipulated notice of ambient air quality. dismissal will be affirmed. provided in the ADDRESSES section. Please ensure that your comments are SUMMARY: Notice is hereby given that II. Additional Information About submitted within the specified comment the Environmental Protection Agency Commenting on the Proposed period. (EPA) has designated one new Stipulation and Stipulated Notice of equivalent method for measuring Dismissal If you submit an electronic comment, EPA recommends that you include your concentrations of ozone (O3) in ambient A. How can I get a copy of the proposed name, mailing address, and an email air. stipulated partial settlement agreement? address or other contact information in FOR FURTHER INFORMATION CONTACT: The official public docket for this the body of your comment and with any Robert Vanderpool, Exposure Methods action (identified by EPA–HQ–OGC– disk or CD ROM you submit. This and Measurement Division (MD–D205– 2019–0478) contains a copy of the ensures that you can be identified as the 03), National Exposure Research proposed stipulated partial settlement submitter of the comment and allows Laboratory, U.S. EPA, Research Triangle agreement. The official public docket is EPA to contact you in case EPA cannot Park, North Carolina 27711. Phone: 919–541–7877. Email: available for public viewing at the read your comment due to technical [email protected]. Office of Environmental Information difficulties or needs further information (OEI) Docket in the EPA Docket Center, on the substance of your comment. Any SUPPLEMENTARY INFORMATION: In EPA West, Room 3334, 1301 identifying or contact information accordance with regulations at 40 CFR Constitution Ave. NW, Washington, DC. provided in the body of a comment will part 53, the EPA evaluates various methods for monitoring the The EPA Docket Center Public Reading be included as part of the comment that concentrations of those ambient air Room is open from 8:30 a.m. to 4:30 is placed in the official public docket, p.m., Monday through Friday, excluding pollutants for which EPA has and made available in EPA’s electronic legal holidays. The telephone number established National Ambient Air public docket. If EPA cannot read your for the Public Reading Room is (202) Quality Standards (NAAQS) as set forth comment due to technical difficulties 566–1744, and the telephone number for in 40 CFR part 50. Monitoring methods the OEI Docket is (202) 566–1752. and cannot contact you for clarification, that are determined to meet specific An electronic version of the public EPA may not be able to consider your requirements for adequacy are docket is available on EPA’s website at comment. designated by the EPA as either [Insert URL] and through Use of the www.regulations.gov reference or equivalent methods (as www.regulations.gov. You may use website to submit comments to EPA applicable), thereby permitting their use www.regulations.gov to submit or view electronically is EPA’s preferred method under 40 CFR part 58 by States and public comments, access the index for receiving comments. The electronic other agencies for determining listing of the contents of the official public docket system is an ‘‘anonymous compliance with the NAAQS. A list of public docket, and access those access’’ system, which means EPA will all reference or equivalent methods that documents in the public docket that are not know your identity, email address, have been previously designated by EPA available electronically. Once in the or other contact information unless you may be found at http://www.epa.gov/ system, key in the appropriate docket provide it in the body of your comment. ttn/amtic/criteria.html. The EPA hereby announces the identification number then select In contrast to EPA’s electronic public ‘‘search.’’ It is important to note that designation of one new equivalent docket, EPA’s electronic mail (email) EPA’s policy is that public comments, method for measuring concentrations of system is not an ‘‘anonymous access’’ whether submitted electronically or in O3 in ambient air. This designation is system. If you send an email comment paper, will be made available for public made under the provisions of 40 CFR viewing online at www.regulations.gov directly to the Docket without going part 53, as amended on October 26, without change, unless the comment through www.regulations.gov, your 2015 (80 FR 65291–65468). This new email address is automatically captured contains copyrighted material, CBI, or equivalent method for O3 is an other information whose disclosure is and included as part of the comment automated method (analyzer) utilizing restricted by statute. Information that is placed in the official public the measurement principle based on UV claimed as CBI and other information docket, and made available in EPA’s photometry. This newly designated whose disclosure is restricted by statute electronic public docket. equivalent method is identified as is not included in the official public Dated: August 13, 2019. follows: docket or in the electronic public Joseph E. Cole, EQOA–0719–253, ‘‘Focused docket. Photonics Inc. AQMS–300 O3 Analyzer’’ EPA’s policy is that copyrighted Associate General Counsel. UV photometric analyzer operated the material, including copyrighted material [FR Doc. 2019–18132 Filed 8–22–19; 8:45 am] range of 0–0.5 ppm, with 5 mm, 47 mm contained in a public comment, will not BILLING CODE 6560–50–P diameter Teflon® (PTFE) filter installed,

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operated at temperatures between 20°C CFR part 58. Questions concerning the • Mail: Document Control Office and 30°C, at nominal input line voltage commercial availability or technical (7407M), Office of Pollution Prevention of 220±10% VAC and frequency of 50 aspects of the method should be and Toxics (OPPT), Environmental Hz, at a nominal sampling flow rate of directed to the applicant. Protection Agency, 1200 Pennsylvania ± 800 80 cc/min, and operated according Dated: July 31, 2019. Ave. NW, Washington, DC 20460–0001. to the FPI AQMS–300 User Manual. • Hand Delivery: To make special Timothy H. Watkins, This application for an equivalent arrangements for hand delivery or Director, National Exposure Research method determination for this O3 delivery of boxed information, please Laboratory. method was received by the Office of follow the instructions at http:// Research and Development on June 10, [FR Doc. 2019–18234 Filed 8–22–19; 8:45 am] www.epa.gov/dockets/contacts.html. 2019. This analyzer is commercially BILLING CODE 6560–50–P Additional instructions on available from the applicant, Focused commenting or visiting the docket, Photonics Inc. (FPI), 760 Bin‘an Road, along with more information about ENVIRONMENTAL PROTECTION Binjiang District, Hangzhou, Zhejiang, dockets generally, is available at http:// AGENCY China. www.epa.gov/dockets. A representative test analyzer was FOR FURTHER INFORMATION CONTACT [EPA–HQ–OPPT–2019–0131; FRL–9998–29] : For tested in accordance with the applicable technical information about the High- test procedures specified in 40 CFR part Proposed High-Priority Substance Priority Substances contact: Ana 53, as amended on October 26, 2015. Corado, Chemical Control Division, After reviewing the results of those tests Designations Under the Toxic Substances Control Act (TSCA); Notice Office of Pollution Prevention and and other information submitted by the Toxics, Office of Chemical Safety and applicant, EPA has determined, in of Availability and Request for Comment Pollution Prevention, Environmental accordance with part 53, that this Protection Agency (Mailcode 7408M), method should be designated as an AGENCY: Environmental Protection 1200 Pennsylvania Ave. NW, equivalent method. Agency (EPA). Washington, DC 20460–0001; telephone As a designated equivalent method, ACTION: Notice. number: (202) 564–0140; email address: this method is acceptable for use by [email protected]. states and other air monitoring agencies SUMMARY: As required under section For general information contact: The under the requirements of 40 CFR part 6(b) of the Toxic Substances Control Act TSCA-Hotline, ABVI-Goodwill, 422 58, Ambient Air Quality Surveillance. (TSCA) and implementing regulations, South Clinton Ave., Rochester, NY For such purposes, this method must be EPA is proposing to designate 20 14620; telephone number: (202) 554– used in strict accordance with the chemical substances as High-Priority 1404; email address: TSCA-Hotline@ operation or instruction manual Substances for risk evaluation. This epa.gov. associated with the method and subject document and supporting docket to any specifications and limitations materials identify the proposed I. Executive Summary (e.g., configuration or operational designation for each of the chemical A. Does this action apply to me? settings) specified in the designated substances and instructions on how to method description (see the access the chemical-specific This action is directed to the public identification of the method above). information, analysis and basis used by in general and may be of interest to Use of the method also should be in EPA to support the proposed entities that currently or may general accordance with the guidance designation for each chemical manufacture (including import) a and recommendations of applicable substance. EPA is providing a 90-day chemical substance regulated under sections of the ‘‘Quality Assurance comment period during which TSCA (e.g., entities identified under Handbook for Air Pollution interested persons may provide North American Industrial Measurement Systems, Volume I,’’ EPA/ comments on the proposed designations Classification System (NAICS) codes 600/R–94/038a and ‘‘Quality Assurance of High-Priority Substances for risk 325 and 324110). The action may also Handbook for Air Pollution evaluation.August 22, 2019 be of interest to chemical processors, Measurement Systems, Volume II, distributors in commerce, and users; Ambient Air Quality Monitoring DATES: Comments must be received on non-governmental organizations in the Program,’’ EPA–454/B–13–003, (both or before November 21, 2019. environmental and public health available at http://www.epa.gov/ttn/ ADDRESSES: Use one of the following sectors; state and local government amtic/qalist.html). Provisions methods to submit comments. For agencies; and members of the public. concerning modification of such comments not related to a specific Since other entities may also be methods by users are specified under chemical, including comments on Unit interested, the Agency has not Section 2.8 (Modifications of Methods V., direct your comments to docket attempted to describe all the specific by Users) of Appendix C to 40 CFR part identification (ID) number EPA–HQ– entities and corresponding NAICS codes 58. OPPT–2019–0131. For comments on for entities that may be interested in or Consistent or repeated noncompliance one or more of the 20 chemical affected by this action. with any of these conditions should be substances, use the applicable chemical reported to: Director, Exposure Methods specific docket ID number(s) identified B. What action is the Agency taking? and Measurement Division (MD–E205– in Unit IV.B.: EPA is proposing to designate 20 01), National Exposure Research • Federal eRulemaking Portal: http:// chemical substances as High-Priority Laboratory, U.S. Environmental www.regulations.gov. Follow the online Substances for risk evaluation pursuant Protection Agency, Research Triangle instructions for submitting comments. to section 6(b) of the Toxic Substances Park, North Carolina 27711. Do not submit electronically any Control Act (TSCA), 15 U.S.C. 2605(b). Designation of this equivalent method information you consider to be This document includes a summary of is intended to assist the States in Confidential Business Information (CBI) the approach used by EPA to support establishing and operating their air or other information whose disclosure is the proposed designations, the proposed quality surveillance systems under 40 restricted by statute. designation for each of the chemical

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substances, and instructions on how to addition to one complete version of the request public comments on proposed access the chemical-specific comment that includes information priority designations (see also 40 CFR information, analysis and basis used by claimed as CBI, a copy of the comment 702.9(g)). EPA to make the proposed designation that does not contain the information EPA generally used reasonably for each chemical substance. EPA is claimed as CBI must be submitted for available information to screen the providing a 90-day comment period inclusion in the public docket. candidate chemical substances against during which interested persons may Information so marked will not be the following criteria and considerations submit comments on the proposed disclosed except in accordance with (40 CFR 702.9(a)): designations. procedures set forth in 40 CFR part 2. • The chemical substance’s hazard 2. Tips for preparing your comments. and exposure potential; C. Why is the Agency taking this action? When preparing and submitting your • The chemical substance’s TSCA section 6(b) and EPA comments, see the commenting tips at persistence and bioaccumulation; implementing regulations at 40 CFR http://www.epa.gov/dockets/ • Potentially exposed or susceptible 702.9 require EPA to carry out a comments.html. subpopulations; prioritization process for chemical • Storage of the chemical substance II. Background substances that may be designated as near significant sources of drinking high priority for risk evaluation. TSCA TSCA section 6(b)(1) requires EPA to water; • section 6(b)(2)(B) requires that EPA be prioritize chemical substances for risk The chemical substance’s conducting risk evaluations on at least evaluation. As required by TSCA conditions of use or significant changes 20 High-Priority Substances no later section 6(b) and described in 40 CFR in conditions of use; • than three and one-half years after the 702.7, on March 21, 2019 (Ref. 1) EPA The chemical substance’s date of enactment of the Frank R. initiated the prioritization process for 20 production volume or significant chemical substances identified as changes in production volume; and Lautenberg Chemical Safety for the 21st • Century Act (Pub. L. 114–182). EPA is candidates for High-Priority Substance Other risk-based criteria that EPA proposing to designate as High-Priority designation. determines to be relevant to the Substances for risk evaluation the same Under TSCA section 6(b)(1)(B) and designation of the chemical substance’s 20 chemical substances for which EPA implementing regulations (40 CFR priority. initiated the prioritization process 702.3), a High-Priority Substance is As described in 40 CFR 702.9(b), in required by TSCA section 6(b) on March defined as a chemical substance that conducting the review during the 21, 2019 (Ref. 1). EPA is providing a 90- EPA determines, without consideration prioritization process, EPA considered day comment period during which the of costs or other non-risk factors, may sources of information relevant to the public may submit comments on EPA’s present an unreasonable risk of injury to review criteria as outlined in the statute proposed designations of High-Priority health or the environment because of a (TSCA section 6(b)(1)(A)) and Substances for risk evaluation, as potential hazard and a potential route of implementing regulations (40 CFR required by TSCA section 6(b)(1)(C)(ii) exposure under the conditions of use, 702.9(a)) and consistent with the and implementing regulations (40 CFR including an unreasonable risk to scientific standards of TSCA section 702.9(g)). potentially exposed or susceptible 26(h), including, as appropriate, sources subpopulations identified as relevant by for hazard and exposure data listed in D. What is the Agency’s authority for EPA. Appendices A and B of the TSCA Work taking this action? A proposed designation of a substance Plan Chemicals: Methods Document This document is issued pursuant to as a High-Priority Substance is not a (February 2012). In addition, as required TSCA section 6(b)(1). finding of unreasonable risk. Rather, by 40 CFR 702.9, EPA considered the when prioritization is complete, for hazard and exposure potential of the E. What are the estimated incremental those chemicals designated as High- chemical substances and did not impacts of this action? Priority Substances, the Agency will consider costs or other non-risk factors This document identifies 20 chemical have evidence that the substances may in making a proposed priority substances for proposed designation as present an unreasonable risk of injury to designation. High-Priority Substances for risk health or the environment because of a III. Information and Comments evaluation. This document does not potential hazard and a potential route of Received establish any requirements on persons exposure under the conditions of use. or entities outside of the Agency. No Final designation of a High-Priority The initiation of the prioritization incremental impacts are therefore Substance initiates the risk evaluation process (Ref. 1) included a 90-day anticipated, and consequently, EPA did process (40 CFR 702.17), which comment period during which not estimate potential incremental culminates in a finding of whether or interested persons were able to submit impacts for this action. not the chemical substance presents an relevant information on the 20 chemical unreasonable risk of injury to health or substances identified as candidates for F. What should I consider as I prepare the environment under the conditions of High-Priority Substance designation. my comments for EPA? use. EPA received 125 submissions from 1. Submitting Confidential Business This document is intended to fulfill commenters, including private citizens, Information (CBI). Do not submit this the requirement in TSCA section potentially affected businesses, trade information to EPA through 6(b)(1)(C)(ii) that the Administrator associations, environmental and public regulations.gov or email. Clearly mark propose the designation of 20 chemical health advocacy groups, and academia. the part or all of the information that substances as High-Priority Substances Comments addressed the overall you claim to be CBI. For CBI in a disk for risk evaluation after conducting a prioritization process (e.g., the or CD–ROM that you mail to EPA, mark review, as required by TSCA section collection and consideration of relevant the outside of the disk or CD–ROM as 6(b)(1)(A) (see also 40 CFR 702.9(a)). information), the review process (e.g., CBI and then identify electronically This document is also intended to fulfill the use of data and approaches in risk within the disk or CD–ROM the specific the requirement in TSCA section evaluation), information specific to the information that is claimed as CBI. In 6(b)(1)(C)(ii) that the Administrator candidate chemical substances (e.g.,

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relevant studies, assessments and 2. Conditions of use or significant regarding children, women of conditions of use), and topics not changes in conditions of use. EPA reproductive age, and workers (note that germane to this prioritization process assembled information on conditions of consumers are considered as part of the (e.g., scheduling future chemicals for use or significant changes in conditions criterion for ‘‘7. Exposure potential’’): prioritization and concerns about risk of use of the chemical substance using • For children, EPA evaluated the evaluation fees). To the extent that reported CDR data, the Toxics Release chemical substance’s use in products comments provided information on Inventory (TRI) and chemical-specific and articles regulated under TSCA and additional conditions of use for these information received from public intended for children, using CDR candidate High-Priority chemical commenters. TSCA section 3(4) defines information reported during the 2012 substances, those conditions of use are the term ‘‘conditions of use’’ to mean and 2016 CDR cycles. EPA presented discussed in the proposed designation the circumstances, as determined by the information regarding those commercial documents for each chemical substance. Administrator, under which a chemical and consumer uses where the chemical EPA will respond to those and any substance is intended, known, or substance was used in products additional comments in conjunction reasonably foreseen to be manufactured, intended for children. EPA also with the final priority designation of processed, distributed in commerce, identified the potential for these chemical substances. used, or disposed of. For CDR data, EPA developmental hazards that could assembled information submitted by negatively impact children. IV. Chemical Substances for Which • manufacturers (including importers) For women of reproductive age EPA Is Proposing a High-Priority under the 2012 and 2016 CDR reporting (e.g., pregnant women) EPA identified Substance Designation for Prioritization cycles. CDR requires manufacturers exposure conditions and hazard A. Information, Analysis and Basis Used (including importers) to report information for the chemical substance To Support the Proposed High-Priority information on the chemical substances which indicated potential for Substance Designation they produce domestically or import reproductive or developmental adverse into the United States, generally more effects. EPA used reasonably available • For workers, EPA identified the than 25,000 lbs per site. For candidate information, including public comments potential for occupational exposures to priority chemicals included on the TRI received during the 90-day comment workers based on the conditions of use chemical list, information disclosed by period following initiation of the of each chemical. prioritization process (Ref. 1), to analyze reporting facilities in part II Section 3 4. Persistence and bioaccumulation. the candidate chemical substances (‘‘Activities and Uses of the Toxic EPA considered reasonably available against the criteria and considerations Chemical at the Facility’’) of their TRI information of the chemical substance in TSCA section 6(b)(1)(A) and 40 CFR Form R reports was used to supplement and assessed physical-chemical 702.9 (see Unit III.). EPA developed a the CDR information on conditions of properties for persistence and document for each substance to identify use. In addition to the information bioaccumulation based on best available the information, analysis and basis used disclosed in part II Section 3 of the TRI science. EPA presented a summary of to support the proposed designations as Form R, information pertaining to waste the physical and chemical properties a High-Priority Substance for risk management activities (e.g., disposal, and the environmental fate evaluation. These documents are treatment, recycling) disclosed in other characteristics of each chemical available in the docket of each of the sections of the TRI Form R was also substance. chemical substances with a proposed used to supplement the CDR 5. Storage near significant sources of designation as a High-Priority Substance information on conditions of use. Based drinking water. To support the proposed for risk evaluation. The proposed on the manufacturing information, designation, EPA analyzed each designations and docket references are industrial processing and use chemical substance, under its presented in Unit IV.B., along with the information, and consumer and conditions of use, with respect to the docket references. commercial use information reported seven criteria in TSCA section 6(b)(1)(A) Also included in each document is an under CDR and TRI as well as and 40 CFR 702.9. The statute explanation of the approach used by information associated with waste specifically requires the Agency to EPA to conduct the review. Each of the management activities reported under consider the chemical substance’s documents includes an overview of the TRI, as well as chemical-specific storage near significant sources of requirements in TSCA section 6(b)(1)(A) information received from public drinking water, which EPA interprets as and the regulatory section addressing commenters, EPA developed a list of direction to focus on the chemical the following review criteria and conditions of use from data reported substance’s potential human health considerations (40 CFR 702.9): during the 2012 and 2016 CDR reporting hazard and exposure. EPA reviewed 1. Production volume or significant cycles and the 2011, 2015, and 2017 TRI reasonably available information, changes in production volume. EPA reporting cycles, as appropriate. Should specifically looking to identify certain considered reasonably available the Agency decide to make a final types of existing regulations or information on the current volume or decision to designate a chemical protections for the proposed chemical significant changes in volume of the substance as a high-priority substance substances. EPA considered the chemical substance using reported for risk evaluation, further chemical substance’s potential human information from manufacturers characterization of relevant TSCA health hazards, including to potentially (including importers) under the conditions of use will be identified exposed or susceptible subpopulations, Chemical Data Reporting (CDR) rule. during the risk evaluation process as by identifying existing National Primary EPA assembled information reported to part of EPA’s scope document. Drinking Water Regulations (40 CFR the Agency from 1986 through 2016 on 3. Potentially exposed or susceptible part 141) and other regulations under the production volume under the subpopulations. In this review, EPA the CWA (40 CFR 401.15). In addition, Inventory Update Rule (IUR) and CDR. considered reasonably available EPA considered the consolidated list of The most recent principal reporting year information to identify potentially chemicals subject to reporting for which CDR data are available is 2015 exposed or susceptible subpopulations. requirements under the EPCRA (Section information, reported in 2016. At this stage, EPA analyzed information 302 Extremely Hazardous Substances

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and Section 313 Toxic Chemicals), B. Proposed Designation as High- ester), CASRN 84–61–7, Docket ID number: CERCLA (Hazardous Substances), and Priority Substances for Risk Evaluation EPA–HQ–OPPT–2018–0504. the CAA (Section 112(r) Regulated 11. Di-ethylhexyl phthalate (DEHP) (1,2- Chemicals for Accidental Release EPA is proposing to designate the 20 Benzenedicarboxylic acid, 1,2-bis(2- Prevention). Regulation by one of these chemicals listed in Unit IV.C. as High- ethylhexyl) ester), CASRN 117–81–7, Docket authorities is an indication that the Priority Substances for risk evaluation. ID number: EPA–HQ–OPPT–2018–0433. substance is a potential health or The proposed designations are based on 12. Di-isobutyl phthalate (DIBP) (1,2- environmental hazard which, if released the conclusion that the chemical Benzenedicarboxylic acid, 1,2-bis(2- near a significant source of drinking substance satisfies the definition of methylpropyl) ester), CASRN 84–69–5, water, could present unreasonable risk High-Priority Substance in TSCA Docket ID number: EPA–HQ–OPPT–2018– to health or the environment. section 6(b)(1)(B) and 40 CFR 702.3. As 0434. mentioned previously, a proposed 13. Ethylene dibromide (Ethane, 1,2- 6. Hazard potential. EPA considered designation of a chemical substance as dibromo-), CASRN 106–93–4, Docket ID reasonably available information to a High-Priority Substance is not a number: EPA–HQ–OPPT–2018–0488. identify potential hazards for each finding of unreasonable risk; rather, 14. Formaldehyde, CASRN 50–00–0, chemical substance. EPA surveyed when prioritization is complete, a final Docket ID number: EPA–HQ–OPPT–2018– information from previous peer- designation as a High-Priority Substance 0438. reviewed assessments and databases will initiate the risk evaluation for the 15. 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8- and summarized the reasonably chemical substance, which will hexamethylcyclopenta [g]-2-benzopyran available information for potential culminate in a finding of whether or not (HHCB), CASRN 1222–05–5, Docket ID human health and environmental the chemical substance presents an number: EPA–HQ–OPPT–2018–0430. hazards by endpoints of concern. If unreasonable risk to health or the 16. 4,4’-(1-Methylethylidene)bis[2, 6- endpoint-specific hazard information environment under the conditions of dibromophenol] (TBBPA), CASRN 79–94–7, was not available for the chemical use. Based on the information provided Docket ID number: EPA–HQ–OPPT–2018– substance subject to the review, then in the Proposed Designation documents, 0462. EPA considered isomer analog data. the Agency is proposing the chemical 17. Phosphoric acid, triphenyl ester (TPP) 7. Exposure potential. EPA considered substances listed in Unit IV.C. as High- CASRN 115–86–6, Docket ID number: EPA– reasonably available information to Priority Substances for risk evaluation. HQ–OPPT–2018–0458. identify potential environmental, The chemical-specific designation 18. Phthalic anhydride (1,3- worker/occupational, consumer, and documents containing the information, Isobenzofurandione), CASRN 85–44–9, general population exposures for each analysis and basis used to support the Docket ID number: EPA–HQ–OPPT–2018– chemical substance: proposed designation are located in the 0459. • For environmental exposures, EPA docket for each chemical substance. 19. 1,1,2-Trichloroethane, CASRN 79–00–5, considered the conditions of use and Docket ID number: EPA–HQ–OPPT–2018– activities associated with those C. Request for Comments 0421. conditions of use and considered 20. Tris(2-chloroethyl) phosphate (TCEP) EPA is interested in comments that (Ethanol, 2-chloro-, 1,1’,1’’-phosphate), monitoring data and fate properties of would inform the exposure and hazard each chemical substance to anticipate CASRN 115–96–8, Docket ID number: EPA– assessments and the identification of HQ–OPPT–2018–0476. its presence in different environmental conditions of use for the following media. chemicals: V. References • For worker or occupational 1. 1,3-Butadiene, CASRN 106–99–0, Docket exposure, EPA identified the conditions The following is a listing of the ID number: EPA–HQ–OPPT–2018–0451. documents that are specifically of use that are likely to result in workers 2. Butyl benzyl phthalate (BBP) (1,2- exposures, such as manufacturing, Benzenedicarboxylic acid, 1-butyl 2- referenced in this document. The docket processing, industrial and commercial (phenylmethyl) ester), CASRN 85–68–7, includes these documents and other use, distribution in commerce, and Docket ID number: EPA–HQ–OPPT–2018– information considered by EPA, disposal. 0501. including documents that are referenced • For consumer exposure, EPA 3. Dibutyl phthalate (DBP) (1,2- within the documents that are included identified consumer uses using CDR Benzenedicarboxylic acid, 1,2-dibutyl ester), in the docket, even if the referenced CASRN 84–74–2, Docket ID number: EPA– document is not physically located in information, information from the NIH HQ–OPPT–2018–0503. Household Products Database and the 4. o-Dichlorobenzene (Benzene, 1,2- the docket. For assistance in locating EPA’s Chemical and Products Database dichloro-), CASRN 95–50–1, Docket ID these other documents, please consult (CPDat). number: EPA–HQ–OPPT–2018–0444. the technical person listed under FOR • For general population exposure, 5. p-Dichlorobenzene (Benzene, 1,4- FURTHER INFORMATION CONTACT. dichloro-), CASRN 106–46–7, Docket ID EPA considered releases from certain 1. EPA. Initiation of Prioritization Under the conditions of use as reported in TRI, number: EPA–HQ–OPPT–2018–0446. 6. 1,1-Dichloroethane, CASRN 75–34–3, Toxic Substances Control Act (TSCA). such as manufacturing, that may result Docket ID number: EPA–HQ–OPPT–2018– Notice. Federal Register. (84 FR 10491, in general population exposures via 0426. March 21, 2019) (FRL–9991–06). drinking water ingestion and/or 7. 1,2-Dichloroethane, CASRN 107–06–2, Authority: 15 U.S.C. 2601 et seq. inhalation from air releases. Docket ID number: EPA–HQ–OPPT–2018– 8. Other risk-based criteria that EPA 0427. Dated: August 16, 2019. determined to be relevant to the 8. trans-1,2-Dichloroethylene (Ethene, 1,2- Andrew R. Wheeler, designation of the chemical substance’s dichloro-, (1E)-), CASRN 156–60–5, Docket ID number: EPA–HQ–OPPT–2018–0465. Administrator. priority. EPA did not identify other risk- 9. 1,2-Dichloropropane, CASRN 78–87–5, [FR Doc. 2019–18134 Filed 8–22–19; 8:45 am] based criteria relevant to the proposed Docket ID number: EPA–HQ–OPPT–2018– BILLING CODE 6560–50–P designations of the candidate chemical 0428. substances as High-Priority Substance 10. Dicyclohexyl phthalate (1,2- for risk evaluation. Benzenedicarboxylic acid, 1,2-dicyclohexyl

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EXPORT-IMPORT BANK construction of a natural gas displays a currently valid OMB control liquefaction plant and associated number. No person shall be subject to [Public Notice: 2019–0001 ] facilities in Mozambique. any penalty for failing to comply with Application for Final Commitment for a Information on Decision: Information a collection of information subject to the Long-Term Loan or Financial on the final decision for this transaction PRA that does not display a valid OMB Guarantee in Excess of $100 Million: will be available in the ‘‘Summary control number. AP087889XX Minutes of Meetings of Board of DATES: Written PRA comments should Directors’’ on http://exim.gov/newsand be submitted on or before October 22, AGENCY: Export-Import Bank of the events/boardmeetings/board/ 2019. If you anticipate that you will be United States. Confidential Information: Please note submitting comments but find it ACTION: Notice. that this notice does not include difficult to do so within the period of confidential or proprietary business time allowed by this notice, you should SUMMARY: This Notice is to inform the information; information which, if advise the contact listed below as soon public, in accordance with Section disclosed, would violate the Trade as possible. 3(c)(10) of the Charter of the Export- Secrets Act; or information which ADDRESSES: Direct all PRA comments to Import Bank of the United States (‘‘Ex- would jeopardize jobs in the United Im Bank’’), that Ex-Im Bank has received Cathy Williams, FCC, via email PRA@ States by supplying information that fcc.gov and to [email protected]. an application for final commitment for competitors could use to compete with a long-term loan or financial guarantee companies in the United States. FOR FURTHER INFORMATION CONTACT: For in excess of $100 million (as calculated additional information about the in accordance with Section 3(c)(10) of Joyce Stone, information collection, contact Cathy the Charter). Comments received within Program Specialist, Office of the General Williams at (202) 418–2918. the comment period specified below Counsel. SUPPLEMENTARY INFORMATION: will be presented to the Ex-Im Bank [FR Doc. 2019–18153 Filed 8–22–19; 8:45 am] OMB Control Number: 3060–0653. Board of Directors prior to final action BILLING CODE 6690–01–P Title: Sections 64.703(b) and (c), on this Transaction. Any comments Consumer Information—Posting by received will be made available to the Aggregators. public. FEDERAL COMMUNICATIONS Form No.: N/A. Type of Review: Extension of a DATES: Comments must be received on COMMISSION currently approved collection. or before September 17, 2019 to be [OMB 3060–0653] assured of consideration before final Respondents: Business or other for- consideration of the transaction by the Information Collection Being Reviewed profit entities. Number of Respondents: 56,075 Board of Directors of Ex-Im Bank. by the Federal Communications Commission respondents; 5,339,038 responses. ADDRESSES: Comments may be Estimated Time per Response: .017 submitted through Regulations.gov at AGENCY: Federal Communications hours (1 minute) to 3 hours. WWW.REGULATIONS.GOV. To submit Commission. Frequency of Response: On occasion a comment, enter EIB–2019–0001 under ACTION: Notice and request for reporting requirements; Third party the heading ‘‘Enter Keyword or ID’’ and comments. disclosure. select Search. Follow the instructions Obligation to Respond: Required to provided at the Submit a Comment SUMMARY: As part of its continuing effort obtain or retain benefits. The statutory screen. Please include your name, to reduce paperwork burdens, and as authority for this information collection company name (if any) and EIB–2019– required by the Paperwork Reduction is found at section 226 [47 U.S.C. 226] 0001 on any attached document. Act (PRA) of 1995, the Federal Telephone Operator Services codified at Reference: AP087889XX. Communications Commission (FCC or 47 CFR 64.703(b) Consumer Purpose and Use: Brief description of Commission) invites the general public Information. the purpose of the transaction: To and other Federal agencies to take this Total Annual Burden: 174,401 hours. support the export of U.S. goods and opportunity to comment on the Total Annual Cost: $1,446,340. services to Mozambique. following information collections. Privacy Act Impact Assessment: An Brief non-proprietary description of Comments are requested concerning: assurance of confidentiality is not the anticipated use of the items being Whether the proposed collection of offered because this information exported: To be used in connection with information is necessary for the proper collection does not require the the construction of a natural gas performance of the functions of the collection of personally identifiable liquefaction plant and associated Commission, including whether the information (PII) from individuals. facilities. information shall have practical utility; Nature and Extent of Confidentiality: Parties: Principal U.S. Contractors the accuracy of the Commission’s No impact(s). identified to date: burden estimate; ways to enhance the Needs and Uses: The information Air Products and Chemicals Inc. quality, utility, and clarity of the collection requirements included under McDermott International Inc. information collected; ways to minimize this OMB Control Number 3060–0653, Obligors: a special purpose company the burden of the collection of requires aggregators (providers of to be organized under the laws of the information on the respondents, telephones to the public or to transient ADGM, a financial free zone within the including the use of automated users of their premises) under 47 U.S.C. Emirate of Abu Dhabi and a special collection techniques or other forms of 226(c)(1)(A), 47 CFR 64.703(b) of the purpose company to be organized under information technology; and ways to Commission’s rules, to post in writing, the laws of Mozambique. further reduce the information on or near such phones, information Guarantor(s): N/A collection burden on small business about the pre-subscribed operator Description of Items Being Exported: concerns with fewer than 25 employees. services, rates, carrier access, and the U.S. liquefaction technology and other The FCC may not conduct or sponsor FCC address to which consumers may U.S. goods and services related to the a collection of information unless it direct complaints.

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Section 64.703(c) of the Commission’s DATES: Written PRA comments should Federal Communications Commission. rules requires the posted consumer be submitted on or before October 22, Marlene Dortch, information to be added when an 2019. If you anticipate that you will be Secretary, Office of the Secretary. aggregator has changed the pre- submitting comments, but find it [FR Doc. 2019–18182 Filed 8–22–19; 8:45 am] subscribed operator service provider difficult to do so within the period of BILLING CODE 6712–01–P (OSP) no later than 30 days following time allowed by this notice, you should such change. Consumers will use this advise the contact listed below as soon information to determine whether they as possible. FEDERAL COMMUNICATIONS wish to use the services of the identified ADDRESSES: Direct all PRA comments to COMMISSION OSP. Nicole Ongele, FCC, via email PRA@ Federal Communications Commission. fcc.gov and to [email protected]. Federal Advisory Committee Act; Communications Security, Reliability, Marlene Dortch, FOR FURTHER INFORMATION CONTACT: For and Interoperability Council Secretary. additional information about the [FR Doc. 2019–18181 Filed 8–22–19; 8:45 am] information collection, contact Nicole AGENCY: Federal Communications Ongele at (202) 418–2991. BILLING CODE 6712–01–P Commission. SUPPLEMENTARY INFORMATION: ACTION: Notice of public meeting. OMB Control No.: 3060–1060. FEDERAL COMMUNICATIONS Title: Wireless E911 Coordination SUMMARY: In accordance with the COMMISSION Initiative Letter to State 911 Federal Advisory Committee Act, this Coordinators. notice advises interested persons that [OMB 3060–1060] Form No.: N/A. the Federal Communications Commission’s (FCC or Commission) Type of Review: Extension of a Communications Security, Reliability, Information Collection Being Reviewed currently approved collection. and Interoperability Council (CSRIC) VII by the Federal Communications Respondents: State, Local or Tribal will hold its second meeting. Commission Under Delegated Government. Authority Number of Respondents and DATES: September 17, 2019. ADDRESSES: Federal Communications AGENCY: Federal Communications Responses: 50 respondents; 50 Commission, Room TW–C305 Commission. responses. Estimated Time per Response: 0.75 (Commission Meeting Room), 445 12th ACTION: Notice and request for hours. Street SW, Washington, DC 20554. comments. Frequency of Response: On occasion FOR FURTHER INFORMATION CONTACT: SUMMARY: As part of its continuing effort reporting requirement. Suzon Cameron, Designated Federal to reduce paperwork burdens, and as Obligation to Respond: Voluntary. Officer, (202) 418–1916 (voice) or required by the Paperwork Reduction Statutory authority for this collection is [email protected] (email); or, Act (PRA) of 1995, the Federal contained in Section 1 and 4(i) of the Kurian Jacob, Deputy Designated Communications Commission (FCC or Communications Act. Federal Officer, (202) 418–2040 (voice) the Commission) invites the general Total Annual Burden: 38 hours. or [email protected] (email). public and other Federal agencies to Total Annual Cost: No cost. SUPPLEMENTARY INFORMATION: The take this opportunity to comment on the Privacy Act Impact Assessment: No meeting will be held on September 17, following information collection. impact(s). 2019, from 1 p.m. to 5 p.m. in the Comments are requested concerning: Nature and Extent of Confidentiality: Commission Meeting Room of the Whether the proposed collection of There is no need for confidentiality. Federal Communications Commission, information is necessary for the proper Needs and Uses: This collection will Room TW–C305, 445 12th Street SW, performance of the functions of the be submitted as an extension after this Washington, DC 20554. Commission, including whether the 60-day comment period to the Office of The CSRIC is a Federal Advisory information shall have practical utility; Management and Budget (OMB) in order Committee that will provide the accuracy of the Commission’s to obtain the full three-year clearance. recommendations to the FCC regarding burden estimate; ways to enhance the This voluntary collection was best practices and actions the FCC can quality, utility, and clarity of the implemented in a letter that was sent, take to help ensure the security, information collected; ways to minimize following the FCC’s Second E911 reliability, and interoperability of the burden of the collection of Coordination Initiative, to pertinent communications systems. On March 15, information on the respondents, State officials who had been appointed 2019, the FCC, pursuant to the Federal including the use of automated to oversee their States’ programs to Advisory Committee Act, renewed the collection techniques or other forms of implement emergency (E911) Phase II charter for the CSRIC for a period of two information technology; and ways to service. This collection is necessary so years through March 14, 2021. The further reduce the information that the Commission can correct meeting on September 17, 2019, will be collection burden on small business inaccuracies and have up-to-date the second meeting of the CSRIC under concerns with fewer than 25 employees. information to ensure the integrity of the current charter. The FCC will The FCC may not conduct or sponsor a the Commission’s database of Public attempt to accommodate as many collection of information unless it Safety Answering Points (PSAPs) attendees as possible; however, displays a currently valid control throughout the nation. The accurate admittance will be limited to seating number. No person shall be subject to compiling and maintaining of this availability. The Commission will any penalty for failing to comply with database is an inherent part of the provide audio and/or video coverage of a collection of information subject to the Commission’s effort to achieve the the meeting over the internet from the PRA that does not display a valid Office expeditious implementation of E911 FCC’s web page at http://www.fcc.gov/ of Management and Budget (OMB) service across the nation and to ensure live. The public may submit written control number. homeland security. comments before the meeting to Suzon

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Cameron, CSRIC Designated Federal GENERAL SERVICES 3090–0086, Proposal to Lease Space, Officer, by email suzon.cameron@ ADMINISTRATION GSA Form 1364 and Lessor’s Annual fcc.gov or U.S. Postal Service Mail to Cost Statement, GSA Form 1217, in all [OMB Control No. 3090–0086; Docket No. Suzon Cameron, Senior Attorney, 2019–0001; Sequence No. 9] correspondence related to this Cybersecurity and Communications collection. All comments received will Reliability Division, Public Safety and General Services Administration be posted without change to http:// Homeland Security Bureau, Federal Acquisition Regulation; Information www.regulations.gov, including any Communications Commission, 445 12th Collection; Proposal To Lease Space, personal and/or business confidential Street SW, Room 7–B458, Washington, GSA Form 1364 and Lessor’s Annual information provided. DC 20554. Cost Statement, GSA Form 1217 FOR FURTHER INFORMATION CONTACT: Ms. Open captioning will be provided for Christina Mullins, Procurement Analyst, AGENCY: Office of the Chief Acquisition this event. Other reasonable General Services Acquisition Policy Officer, General Services accommodations for people with Division, 202–969–4066 or via email at Administration (GSA). disabilities are available upon request. [email protected]. ACTION: Notice of request for comments Requests for such accommodations SUPPLEMENTARY INFORMATION: should be submitted via email to regarding an extension to an existing [email protected] or by calling the OMB clearance. A. Purpose Consumer & Governmental Affairs SUMMARY: Under the provisions of the The General Services Administration Bureau at (202) 418–0530 (voice), (202) Paperwork Reduction Act, the has various mission responsibilities 418–0432 (tty). Such requests should Regulatory Secretariat Division will be related to the acquisition, management, include a detailed description of the submitting to the Office of Management and disposal of real and personal accommodation needed. In addition, and Budget (OMB) a request to review property. These mission responsibilities please include a way the FCC can and approve an extension of a include developing requirements, contact you if it needs more previously approved information solicitation of lease offers and the award information. Please allow at least five collection requirement for Proposal to of real property lease contracts. days’ advance notice; last-minute Lease Space, GSA Form 1364 and Individual solicitations and resulting requests will be accepted but may be Lessor’s Annual Cost Statement, GSA contracts may impose unique impossible to fill. Form 1217. information collection/reporting Federal Communications Commission. DATES: Submit comments on or before: requirements on contractors, not Katura Jackson, October 22, 2019. required by regulation, but necessary to (1) evaluate whether the physical Federal Register Liaison Officer. ADDRESSES: Submit comments regarding attributes of offered properties meet the [FR Doc. 2019–18232 Filed 8–22–19; 8:45 am] this burden estimate or any other aspect of this collection of information, Government’s requirements and (2) BILLING CODE 6712–01–P including suggestions for reducing this evaluate the owner/offeror’s price burden, to GSA by any of the following proposal. The approval requested methods: includes four versions of the GSA Form • 1364; GSA Forms 1364, 1364A, 1364A– FEDERAL RETIREMENT THRIFT Regulations.gov: http:// 1, and 1364WH. These forms are used INVESTMENT www.regulations.gov. Submit comments via the Federal eRulemaking portal by to obtain information for offer Board Member Meeting inputting ‘‘Information Collection 3090– evaluation and lease award purposes 0086, Proposal to Lease Space, GSA regarding property being offered for Telephonic, August 27, 2019, 10 a.m. Form 1364 and Lessor’s Annual Cost lease to house Federal agencies. This Statement, GSA Form 1217’’ under the includes financial aspects of offers for Open Session heading ‘‘Enter Keyword or ID’’ and analysis and negotiation, such as real 1. Approval of the July 22, 2019 Board selecting ‘‘Search’’. Select the link estate taxes, adjustments for vacant Meeting Minutes ‘‘Submit a Comment’’ that corresponds space, and offeror construction overhead fees. 2. Monthly Reports with ‘‘Information Collection 3090– 0086, Proposal to Lease Space, GSA A total of seven lease contract models (a) Participant Activity Report Form 1364 and Lessor’s Annual Cost have been developed to meet the needs (b) Investment Performance Statement, GSA Form 1217’’. Follow the of the national leased portfolio. Three of (c) Legislative Report instructions provided at the ‘‘Submit a these lease models require offerors to 3. Quarterly Reports Comment’’ screen. Please include your complete a GSA Form 1364 and two (d) Metrics name, company name (if any), and require a GSA Form 1217. The GSA ‘‘Information Collection 3090–0086, Form 1364 versions require the 4. Audit Update Proposal to Lease Space, GSA Form submission of information specifically 5. 2019/2020 Board Meeting Calendar 1364 and Lessor’s Annual Cost aligned with certain leasing models and Review Statement, GSA Form 1217’’ on your avoids mandating submission of 6. Withdrawal Project Update attached document. information that is not required for use • CONTACT PERSON FOR MORE INFORMATION: Mail: General Services in evaluation and award under each Kimberly Weaver, Director, Office of Administration, Regulatory Secretariat model. The GSA Form 1217 requires the External Affairs (202) 942–1640. Division (MVCB), 1800 F Street NW, submission of information specific to Washington, DC 20405. ATTN: Ms. the services and utilities of a building in Dated: August 19, 2019. Mandell/IC 3090–0086, Proposal to support of the pricing detailed under Megan Grumbine, Lease Space, GSA Form 1364 and GSA Form 1364. The forms relate to General Counsel, Federal Retirement Thrift Lessor’s Annual Cost Statement, GSA individual lease procurements and no Investment Board. Form 1217. duplication exists. [FR Doc. 2019–18164 Filed 8–22–19; 8:45 am] Instructions: Please submit comments The Global Lease model uses the GSA BILLING CODE 6760–01–P only and cite Information Collection Form 1364. The 1364 captures all rental

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components, including the pricing for collection of information is accurate, Additionally submit a copy to GSA by the initial tenant improvements. The and based on valid assumptions and any of the following methods: global nature of the 1364 provides methodology; ways to enhance the • Federal eRulemaking Portal: This flexibility in capturing tenant quality, utility, and clarity of the website provides the ability to type improvement pricing based on either information to be collected; and ways in short comments directly into the allowance or turnkey pricing, as which we can minimize the burden of comment field or attach a file for required by the solicitation. the collection of information on those lengthier comments. Go to http:// The Simplified Lease Model uses the who are to respond, through the use of www.regulations.gov and follow the GSA Forms 1364A and 1364A–1. This appropriate technological collection instructions on the site. model obtains a firm, fixed price for techniques or other forms of information • Mail: General Services rent, which includes the cost of tenant technology. Administration, Regulatory Secretariat improvement construction. Therefore, Obtaining Copies of Proposals: Divison (MVCB), 1800 F Street NW, leases using the Simplified model do Requesters may obtain a copy of the Washington, DC 20405. ATTN: Ms. not include post-award tenant information collection documents from Mandell/IC 9000–0114, Right of First improvement cost information on the the General Services Administration, Refusal of Employment. form. The 1364A includes rental rate Regulatory Secretariat Division, 1800 F Instructions: All items submitted components and cost data that becomes Street NW, Washington, DC 20405, must cite Information Collection 9000– part of the lease contract and that is telephone 202–501–4755. Please cite 0114, Right of First Refusal of necessary to satisfy GSA pricing policy OMB Control No. 3090–0086, Proposal Employment, in all correspondence requirements. to Lease Space, GSA Form 1364 and related to this collection. Comments The 1364A–1 is a checklist that Lessor’s Annual Cost Statement, GSA received generally will be posted addresses technical requirements as Form 1217, in all correspondence. without change to http:// referenced in the Request for Lease www.regulations.gov, including any Proposals. The 1364A–1 is separate Jeffrey A. Koses, personal and/or business confidential from the proposal itself and is Senior Procurement Executive, Office of information provided. To confirm maintained in the lease file; it does not Acquisition Policy, Office of Government- receipt of your comment(s), please wide Policy. become an exhibit to the lease. The check www.regulations.gov, 1364A–1 may contain proprietary [FR Doc. 2019–18143 Filed 8–22–19; 8:45 am] approximately two-to-three days after offeror information that cannot be BILLING CODE 6820–61–P submission to verify posting (except released under the Freedom of allow 30 days for posting of comments Information Act. submitted by mail). DEPARTMENT OF DEFENSE The Warehouse Lease Model uses FOR FURTHER INFORMATION CONTACT: Mr. GSA Form 1364WH. This model is GENERAL SERVICES Michael O. Jackson, Procurement specifically designed to accommodate ADMINISTRATION Analyst, Office of Governmentwide the special characteristics of warehouse Acquisition Policy, GSA, at 202–208– space and is optimized for space whose NATIONAL AERONAUTICS AND 4949 or via email at michaelo.jackson@ predominant use is for storage, SPACE ADMINISTRATION gsa.gov. distribution, or manufacturing. The SUPPLEMENTARY INFORMATION: 1364WH captures building [OMB Control No. 9000–0114; Docket No. characteristics unique to warehouse 2019–0003; Sequence No. 9] A. OMB Control Number, Title, and facilities and allows for evaluation of Any Associated Form(s) Submission for OMB Review; Right of offers based on either area or volume 9000–0114, Right of First Refusal of First Refusal of Employment calculations. Employment. The Global and Warehouse Lease AGENCY: Department of Defense (DOD), B. Needs and Uses Models use the GSA Form 1217. GSA General Services Administration (GSA), Form 1217 captures the estimated and National Aeronautics and Space As prescribed in FAR 7.305(c), the annual cost of services and utilities and Administration (NASA). clause at FAR 52.207–3, Right of First Refusal of Employment, deals with the estimated costs of ownership, ACTION: Notice. exclusive of capital charges. These costs adversely affected or separated are listed for both the entire building SUMMARY: Under the provisions of the Government employees resulting from and the area proposed for lease to the Paperwork Reduction Act, the the conversion of work from in-house Government, broken down into specific Regulatory Secretariat Division has performance to performance by contract. categories. submitted to the Office of Management The clause requires the contractor to give these employees an opportunity to B. Annual Reporting Burden and Budget (OMB) a request to review and approve a revision and renewal of work for the contractor who is awarded Respondents: 426. a previously approved information the contract. Responses per Respondent: 3.36 collection requirement regarding right of The information gathered will be used (weighted average). first refusal employment. by the Government to gain knowledge of Total Responses: 1,430. which employees, adversely affected or Hours per Response: 4.11 (weighted DATES: Submit comments on or before September 23, 2019. separated as a result of the contract average). award, have gained employment with Total Burden Hours: 5,877. ADDRESSES: Submit comments regarding the contractor within 90 days after this burden estimate or any other aspect contract performance begins. C. Public Comments of this collection of information, Public comments are particularly including suggestions for reducing this C. Annual Burden invited on: Whether this collection of burden to: Office of Information and Respondents: 10. information is necessary; whether it will Regulatory Affairs of OMB, Attention: Total Annual Responses: 10. have practical utility; whether our Desk Officer for GSA, Room 10236, Total Burden Hours: 30. estimate of the public burden of this NEOB, Washington, DC 20503. Frequency of Collection: On occasion.

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Affected Public: Businesses or other ADDRESSES: You may submit comments, 3. Enhance the quality, utility, and for-profit and not-for-profit identified by Docket No. CDC–2019– clarity of the information to be organizations. 0072 by any of the following methods: collected; and • Federal eRulemaking Portal: 4. Minimize the burden of the D. Public Comment Regulation.gov. Follow the instructions collection of information on those who A 60-day notice published in the for submitting comments. respond, including through the use of Federal Register at 84 FR 27779, on • Mail: Jeffrey Zirger, Information automated, electronic, mechanical, or June 14, 2019. No comments were Collection Review Office, Centers for other technilogical collection received. Disease Control and Prevention, 1600 techniques or other forms of information Obtaining Copies: Requesters may Clifton Road NE, MS–D74, Atlanta, technology; e.g., permitting electronic obtain a copy of the information Georgia 30329. submissions of responses. collection documents from the General Instructions: All submissions received 5. Assess information costs. Services Administration, Regulatory must include the agency name and Proposed Project Secretariat Division (MVCB), 1800 F Docket Number. All relevant comments Street NW, Washington, DC 20405, received will be posted without change Generic Clearance for CDC/ATSDR telephone 202–501–4755. Please cite to Regulations.gov, including any Formative Research and Tool OMB Control No. 9000–0114, Right of personal information provided. For Development—Extension—Office of First Refusal of Employment, in all access to the docket to read background Science (OS), Centers for Disease correspondence. documents or comments received, go to Control and Prevention (CDC). Dated: August 19, 2019. Regulations.gov. Background and Brief Description Please note: All public comment Janet Fry, The Centers for Disease Control and should be submitted through the Director, Federal Acquisition Policy Division, Prevention (CDC) requests approval for Federal eRulemaking portal Office of Governmentwide Acquisition Policy, an extension of a generic clearance for (Regulations.gov) or by U.S. mail to the Office of Acquisition Policy, Office of CDC/ATSDR Formative Research and address listed above. Governmentwide Policy. Tool Development. This information [FR Doc. 2019–18142 Filed 8–22–19; 8:45 am] FOR FURTHER INFORMATION CONTACT: To collection request is designed to allow BILLING CODE 6820–EP–P request more information on the CDC to conduct formative research proposed project or to obtain a copy of information collection activities used to the information collection plan and inform many aspects of surveillance, DEPARTMENT OF HEALTH AND instruments, contact Jeffrey Zirger, communications, health promotion, and HUMAN SERVICES Information Collection Review Office, research project development at CDC. Centers for Disease Control and Formative research is the basis for Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS– developing effective strategies including Prevention D74, Atlanta, Georgia 30329; phone: communication channels, for 404–639–7570; Email: [email protected]. [60Day–19–1154; Docket No. CDC–2019– influencing behavior change. It helps 0072] SUPPLEMENTARY INFORMATION: Under the researchers identify and understand the Paperwork Reduction Act of 1995 (PRA) characteristics—interests, behaviors and Proposed Data Collection Submitted (44 U.S.C. 3501–3520), Federal agencies needs—of target populations that for Public Comment and must obtain approval from the Office of influence their decisions and actions. Recommendations Management and Budget (OMB) for each Formative research is integral in collection of information they conduct developing programs, as well as AGENCY: Centers for Disease Control and or sponsor. In addition, the PRA also improving existing and ongoing Prevention (CDC), Department of Health requires Federal agencies to provide a programs. Formative research looks at and Human Services (HHS). 60-day notice in the Federal Register the community in which a public health ACTION: Notice with comment period. concerning each proposed collection of intervention is being or will be information, including each new implemented and helps the project staff SUMMARY: The Centers for Disease proposed collection, each proposed understand the interests, attributes and Control and Prevention (CDC), as part of extension of existing collection of needs of different populations and its continuing efforts to reduce public information, and each reinstatement of persons in that community. Formative burden and maximize the utility of previously approved information research occurs before a program is government information, invites the collection before submitting the designed and implemented, or while a general public and other Federal collection to OMB for approval. To program is being conducted. agencies to take this opportunity to comply with this requirement, we are At CDC, formative research is comment on a proposed and/or publishing this notice of a proposed necessary for developing new programs continuing information collections, as data collection as described below. or adapting programs that deal with the required by the Paperwork Reduction The OMB is particularly interested in complexity of behaviors, social context, Act of 1995. This notice invites comments that will help: cultural identities, and health care that comment on ‘‘Generic Clearance for 1. Evaluate whether the proposed underlie the epidemiology of diseases CDC/ATSDR Formative Research and collection of information is necessary and conditions in the U.S. CDC Tool Development’’. This information for the proper performance of the conducts formative research to develop collection request is designed to allow functions of the agency, including public-sensitive communication CDC to conduct formative research whether the information will have messages and user friendly tools prior to information collection activities used to practical utility; developing or recommending inform aspects of surveillance, 2. Evaluate the accuracy of the interventions, or care. Sometimes these communications, health promotion, and agency’s estimate of the burden of the studies are entirely behavioral but most research project development. proposed collection of information, often they are cycles of interviews and DATES: Written comments must be including the validity of the focus groups designed to inform the received on or before October 22, 2019. methodology and assumptions used; development of a product.

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Products from these formative These activities will also provide and material development, (2) cognitive research studies will be used for information about how respondents interviewing for development of specific prevention of disease. Findings from answer questions and ways in which data collection instruments, (3) these studies may also be presented as question response bias and error can be methodological research, (4) usability evidence to disease-specific National reduced. testing of technology-based instruments Advisory Committees, to support This request also includes collection and materials, (5) field testing of new revisions to recommended prevention of information from public health methodologies and materials, (6) and intervention methods, as well as programs to assess needs related to investigation of mental models for new recommendations. initiation of a new program activity or health decision-making to inform health Much of CDC’s health communication expansion or changes in scope or communication messages, and (7) takes place within campaigns that have implementation of existing program organizational needs assessments to fairly lengthy planning periods— activities to adapt them to current support development of capacity. timeframes that accommodate the needs. The information collected will be Respondents who will participate in standard Federal process for approving used to advise programs and provide individual and group interviews data collections. Short term qualitative capacity-building assistance tailored to (qualitative, cognitive, and computer interviewing and cognitive research identify needs. assisted development activities) are techniques have previously proven Overall, these development activities selected purposively from those who invaluable in the development of are intended to provide information that respond to recruitment advertisements. scientifically valid and population- will increase the success of the In addition to utilizing advertisements appropriate methods, interventions, and surveillance or research projects for recruitment, respondents who will instruments. through increasing response rates and participate in research on survey This request includes studies decreasing response error, thereby methods may be selected purposively or investigating the utility and decreasing future data collection burden systematically from within an ongoing acceptability of proposed sampling and to the public. The studies that will be surveillance or research project. recruitment methods, intervention covered under this request will include Participation of respondents is contents and delivery, questionnaire one or more of the following voluntary. There is no cost to domains, individual questions, and investigational modalities: (1) participants other than their time. The interactions with project staff or Structured and qualitative interviewing total estimated annual burden is 20,000 electronic data collection equipment. for surveillance, research, interventions hours.

Total Number of Number of Average response Type of respondent Form name respondents responses per hours per burden respondent response (hrs.)

General public and health care pro- Screener ...... 10,000 1 15/60 2,500 viders. Interview ...... 5,000 1 1 5,000 Focus group interview ...... 5,000 1 2 10,000 Survey ...... 5,000 1 30/60 2,500

Total ...... 25,000 ...... 20,000

Jeffrey M. Zirger, SUMMARY: The Centers for Disease ADDRESSES: You may submit comments, Lead, Information Collection Review Office, Control and Prevention (CDC), as part of identified by Docket No. CDC–2019– Office of Scientific Integrity, Office of Science, its continuing effort to reduce public 0070 by any of the following methods: Centers for Disease Control and Prevention. burden and maximize the utility of • Federal eRulemaking Portal: [FR Doc. 2019–18211 Filed 8–22–19; 8:45 am] government information, invites the Regulations.gov. Follow the instructions BILLING CODE 4163–18–P general public and other Federal for submitting comments. agencies the opportunity to comment on • Mail: Jeffrey M. Zirger, Information a proposed and/or continuing Collection Review Office, Centers for DEPARTMENT OF HEALTH AND information collection, as required by Disease Control and Prevention, 1600 HUMAN SERVICES the Paperwork Reduction Act of 1995. Clifton Road, NE, MS–D74, Atlanta, Centers for Disease Control and This notice invites comment on a Georgia 30329. Prevention proposed information collection project Instructions: All submissions received titled ‘‘Poison Center Collaborations for must include the agency name and Public Health Emergencies.’’ This Docket Number. CDC will post, without [60Day–19–1166; Docket No. CDC–2019– change, all relevant comments to 0070] information collection is designed to create a timely mechanism which will Regulations.gov. Proposed Data Collection Submitted allow a network of regional, state and Please note: Submit all comments for Public Comment and local poison centers, supported by CDC, through the Federal eRulemaking portal Recommendations to obtain critical exposure and health (regulations.gov) or by U.S. mail to the address listed above. information during a public health AGENCY: Centers for Disease Control and emergency. FOR FURTHER INFORMATION CONTACT: To Prevention (CDC), Department of Health request more information on the and Human Services (HHS). DATES: CDC must receive written proposed project or to obtain a copy of comments on or before October 22, the information collection plan and ACTION: Notice with comment period. 2019. instruments, contact Jeffrey M. Zirger,

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Information Collection Review Office, other forms of information technology, back, adverse health effects must have Centers for Disease Control and e.g., permitting electronic submissions occurred and a response is needed to Prevention, 1600 Clifton Road NE, MS– of responses. prevent further morbidity and mortality. D74, Atlanta, Georgia 30329; phone: 5. Assess information collection costs. The event must meet the criteria below: 404–639–7570; Email: [email protected]. Proposed Project (1) The event is a public health SUPPLEMENTARY INFORMATION: Under the emergency causing adverse health Paperwork Reduction Act of 1995 (PRA) Poison Center Collaborations for effects. (44 U.S.C. 3501–3520), Federal agencies Public Health Emergencies (OMB Control No. 0920–1166, Exp. 2/29/ (2) Timely data are urgently needed to must obtain approval from the Office of inform rapid public health action to Management and Budget (OMB) for each 2020)—Extension—National Center for Environmental Health (NCEH), Centers prevent or reduce injury, disease, or collection of information they conduct death. or sponsor. In addition, the PRA also for Disease Control and Prevention (3) The event is characterized by a requires Federal agencies to provide a (CDC). natural or man-made disaster, 60-day notice in the Federal Register Background and Brief Description contaminated food or water, a new or concerning each proposed collection of The Centers for Disease Control and existing consumer product, or an information, including each new Prevention (CDC) is requesting a three- emerging public health threat. proposed collection, each proposed extension of existing collection of year Paperwork Reduction Act (PRA) (4) The event has resulted in calls to information, and each reinstatement of clearance for an extension to the a poison center, and the poison center previously approved information Generic Information Collection Request agrees to conduct the call-back data collection before submitting the (Generic ICR) titled Poison Center collection. collection to the OMB for approval. To Collaborations for Public Health (5) The event is domestic. Emergencies (OMB Control No. 0920– comply with this requirement, we are (6) Data collection will be completed publishing this notice of a proposed 1166). CDC’s key partner, the American in 60 days or less. data collection as described below. Trained poison center staff will The OMB is particularly interested in Association of Poison Control Centers (AAPCC), is a national network of 55 conduct the call-back telephone survey, comments that will help: after administering consent. 1. Evaluate whether the proposed poison centers working to prevent and Respondents will include individuals collection of information is necessary treat poison exposures. The goal for this who call poison centers about exposures for the proper performance of the new Generic ICR is to create a timely related to the select public health functions of the agency, including mechanism to allow poison centers, in emergencies. These respondents include whether the information will have collaboration with CDC, to obtain adults, 18 years and older; adolescents, practical utility; critical exposure and health information 2. Evaluate the accuracy of the during public health emergencies. This 15 to less than 18 years; and parents or agency’s estimate of the burden of the information is not captured during guardians on behalf of their children proposed collection of information, initial poison center calls about triage less than 15 years of age. including the validity of the and treatment of potential poison The total estimate of 300 annual methodology and assumptions used; exposures. Additional data collections respondents is based on poison center 3. Enhance the quality, utility, and are needed quickly to further experience which assumes two clarity of the information to be characterize exposures, risk factors, and incidents per year with approximately collected; and illnesses. 150 respondents per event. The average 4. Minimize the burden of the When a public health emergency of burden per respondent is approximately collection of information on those who interest to CDC and AAPCC occurs, the 40 minutes for the call-back are to respond, including through the CDC and AAPCC hold a meeting to questionnaire. We anticipate a total use of appropriate automated, mutually decide whether the incident annualized burden of 200 hours. There electronic, mechanical, or other needs further investigation. For a public is no cost to the respondents other than technological collection techniques or health emergency to be selected for call- their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondent Form name respondents responses per response hours respondent (in hours)

Adult Poison Center Callers ...... Call-back Questionnaire for Self ...... 210 1 40/60 140 Adolescent Poison Center Callers .... Call-back Questionnaire for Self ...... 30 1 40/60 20 Parent or Guardian Poison Center Call-back Questionnaire for Proxy ... 60 1 40/60 40 Callers.

Total ...... 200

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Jeffrey M. Zirger, To request additional information on The NPCR CSS allows CDC to collect, Lead, Information Collection Review Office, the proposed project or to obtain a copy aggregate, evaluate, and disseminate Office of Scientific Integrity, Office of Science, of the information collection plan and cancer incidence data at the national Centers for Disease Control and Prevention. instruments, call (404) 639–7570 or level. The NPCR CSS is the primary [FR Doc. 2019–18212 Filed 8–22–19; 8:45 am] send an email to [email protected]. Direct source of information for United States BILLING CODE 4163–18–P written comments and/or suggestions Cancer Statistics (USCS), which CDC regarding the items contained in this has published annually since 2002. The notice to the Attention: CDC Desk latest USCS report published in 2018 DEPARTMENT OF HEALTH AND Officer, Office of Management and provided cancer statistics for 100% of HUMAN SERVICES Budget, 725 17th Street NW, the United States population from all Washington, DC 20503 or by fax to (202) cancer registries in the United States. Centers for Disease Control and 395–5806. Provide written comments Prior to the publication of USCS, cancer Prevention within 30 days of notice publication. incidence data at the national level were available for only 14% of the population [30Day–19–0469] Proposed Project of the United States. Agency Forms Undergoing Paperwork National Program of Cancer Registries The NPCR CSS also allows CDC to Reduction Act Review Cancer Surveillance System (NPCR CSS) monitor cancer trends over time, (OMB Control No. 0920–0469, Exp. 6/ describe geographic variation in cancer In accordance with the Paperwork 30/2019)—Reinstatement with Change— incidence throughout the country, and Reduction Act of 1995, the Centers for National Center for Chronic Disease provide incidence data on racial/ethnic Disease Control and Prevention (CDC) Prevention and Health Promotion populations and rare cancers. These has submitted the information (NCCDPHP), Centers for Disease Control activities and analyses further support collection request titled National and Prevention (CDC). CDC’s planning and evaluation efforts Program of Cancer Registries Cancer Background and Brief Description for state and national cancer control and Surveillance System to the Office of prevention. In addition, datasets can be Management and Budget (OMB) for In 2015, the most recent year for made available for secondary analysis. review and approval. CDC previously which complete information is Respondents are NPCR-supported published a ‘‘Proposed Data Collection available, almost 596,000 people died of central cancer registries (CCR) in 46 U.S. Submitted for Public Comment and cancer and more than 1.6 million were states, three territories, and the District Recommendations’’ notice on May 30, diagnosed with cancer. It is estimated of Columbia. Fifty CCRs submit data 2019 to obtain comments from the that 15.8 million Americans are elements specified for the Standard public and affected agencies. CDC did currently alive with a history of cancer. NPCR CSS Report. Each CCR is asked to not receive comments related to the In the U.S., state/territory-based cancer transmit two data files to CDC per year. previous notice. This notice serves to registries are the only method for The first NPCR CSS Standard file, allow an additional 30 days for public systematically collecting and reporting submitted in January, is a preliminary and affected agency comments. population based information about report consisting of one year of data for CDC will accept all comments for this cancer incidence and outcomes such as the most recent year of available data. proposed information collection project. survival. These data are used to measure CDC evaluates the preliminary data for The Office of Management and Budget the changing incidence and burden of completeness and quality and provides is particularly interested in comments each cancer; identify populations at a report back to the CCR. The second that: increased or increasing risk; target NPCR CSS Standard file, submitted by (a) Evaluate whether the proposed preventive measures; and measure the November, contains cumulative cancer collection of information is necessary success or failure of cancer control incidence data from the first diagnosis for the proper performance of the efforts in the U.S. year for which the cancer registry In 1992, Congress passed the Cancer functions of the agency, including collected data with the assistance of Registries Amendment Act which whether the information will have NPCR funds (e.g., 1995) through 12 established the National Program of practical utility; months past the close of the most recent Cancer Registries (NPCR). The NPCR (b) Evaluate the accuracy of the diagnosis year (e.g., 2016). The provides support for state/territory- agencies estimate of the burden of the cumulative file is used for analysis and based cancer registries that collect, proposed collection of information, reporting. including the validity of the manage and analyze data about cancer The burden for each file transmission methodology and assumptions used; cases. The state/territory-based cancer is estimated at two hours per response. (c) Enhance the quality, utility, and registries report information to CDC Because cancer incidence data are clarity of the information to be through the National Program of Cancer already collected and aggregated at the collected; Registries Cancer Surveillance System state level the additional burden of (d) Minimize the burden of the (NPCR CSS), (OMB No. 0920–0469). reporting the information to CDC is collection of information on those who CDC plans to request OMB approval to small. All information is transmitted to are to respond, including, through the reinstate collecting this information for CDC electronically. Participation is use of appropriate automated, three years. Data definitions will be required as a condition of the electronic, mechanical, or other updated to reflect changes in national cooperative agreement with CDC. There technological collection techniques or standards for cancer diagnosis and are no costs to respondents other than other forms of information technology, coding. The number of respondents has their time. The total estimated e.g., permitting electronic submission of been updated to reflect the increased annualized burden hours are 200 for the responses; and number of states/territories supported Standard NPCR CSS Report. (e) Assess information collection by CDC, but the burden per respondent costs. will not change.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hours)

Central Cancer Registries in States, Terri- Standard NPCR CSS Report ...... 50 2 2 tories, and the District of Columbia.

Jeffrey M. Zirger, use of appropriate automated, The PPMR was created by CDC to Lead, Information Collection Review Office, electronic, mechanical, or other provide an agency-wide collection tool Office of Scientific Integrity, Office of Science, technological collection techniques or that would be able to obtain data on the Centers for Disease Control and Prevention. other forms of information technology, progress of CDC Awardees for the [FR Doc. 2019–18208 Filed 8–22–19; 8:45 am] e.g., permitting electronic submission of purposes of evaluation, and to bring the BILLING CODE 4163–18–P responses; and Awardee reporting procedure into (e) Assess information collection compliance with the Paperwork costs. Reduction Act (PRA). DEPARTMENT OF HEALTH AND To request additional information on The information collected enables the HUMAN SERVICES the proposed project or to obtain a copy accurate, reliable, uniform, and timely of the information collection plan and submission to CDC of each Awardee’s Centers for Disease Control and instruments, call (404) 639–7570 or work plans and progress reports, Prevention send an email to [email protected]. Direct including strategies, activities and [30Day–19–1132] written comments and/or suggestions performance measures. The information regarding the items contained in this collected by the PPMR is designed to Agency Forms Undergoing Paperwork notice to the Attention: CDC Desk align with, and support the goals Reduction Act Review Officer, Office of Management and outlined for each of the CDC Awardees. Budget, 725 17th Street NW, Collection and reporting of the In accordance with the Paperwork Washington, DC 20503 or by fax to (202) Reduction Act of 1995, the Centers for information will occur in an efficient, 395–5806. Provide written comments standardized, and user-friendly manner Disease Control and Prevention (CDC) within 30 days of notice publication. has submitted the information that will generate a variety of routine collection request titled Performance Proposed Project and customizable reports. The PPMR will allow each Awardee to summarize Progress and Monitoring Report (PPMR) Performance Progress and Monitoring activities and progress towards meeting (OMB Control No. 0920–1132) to the Report (PPMR) (OMB Control No. 0920– performance measures and goals over a Office of Management and Budget 1132, Exp. 08/31/2019)—Revision— specified time period specific to each (OMB) for review and approval. CDC Office of Science (OS), Centers for award. CDC will also have the capacity previously published a ‘‘Proposed Data Disease Control and Prevention (CDC). Collection Submitted for Public to generate reports that describe Comment and Recommendations’’ Background and Brief Description activities across multiple Awardees. In notice on May 8, 2019 to obtain Each year, approximately 80% of the addition, CDC will use the information comments from the public and affected Centers for Disease Control and collection to respond to inquiries from agencies. CDC received one comment Prevention’s (CDC) budget is distributed HHS, Congress and other stakeholder related to the previous notice. This via contracts, grants and cooperative inquiries about program activities and notice serves to allow an additional 30 agreements, from the Office of Financial their impact. days for public and affected agency Resources (OFR) to partners throughout This Revision request is being comments. the world in an effort to promote health, submitted to allow CDC to continue CDC will accept all comments for this prevent disease, injury and disability collection of this valuable information proposed information collection project. and prepare for new health threats. OFR from Awardees for an additional three The Office of Management and Budget is responsible for the stewardship of years, and to amend the procedures by is particularly interested in comments these funds while providing excellent, which the information can be collected. that: professional services to our partners and Currently, the submission process (a) Evaluate whether the proposed stakeholders. requires Awardees to submit a collection of information is necessary Currently, CDC uses the Performance completed PDF version of the PPMR by for the proper performance of the Progress and Monitoring Report uploading it to www.grants.gov in functions of the agency, including (PPMR—OMB Control Number: 0920– accordance with program guidance and whether the information will have 1132, Expiration Date: 08/31/2019), a award terms and conditions. While this practical utility; progress report form for Non-Research method will continue to be utilized, (b) Evaluate the accuracy of the awards to collect information semi- CDC now requests that Awardees be agencies estimate of the burden of the annually from Awardees regarding the permitted to submit the PPMR, and proposed collection of information, progress made over specified time associated forms directly to the including the validity of the periods on CDC funded projects. The Programs that will be performing the methodology and assumptions used; PPMR was originally modified from SF– evaluation. This method of submission (c) Enhance the quality, utility, and PPR (OMB Control Number: 0970–0406, will occur via the use of a fillable PDF clarity of the information to be Expiration Date: 10/31/2015), a similar and Excel-based versions of the PPMR collected; progress report that was owned by the Reporting Tool. (d) Minimize the burden of the Administration for Children and Use of this mechanism and the ability collection of information on those who Families (ACF) within the Department of Awardees to submit information are to respond, including, through the of Health and Human Services (HHS). related to program evaluation directly to

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evaluators is expected to greatly the opportunity to submit evaluation annual Burden Hours requested is increase the use of the PPMR and its information directly, the total number of 13,014. There is no cost to respondents associated forms. Centers, Institutes and responses per year could be increased other than their time. Offices within CDC will use the PPMR by 2,000, and the overall Burden Hours with varying frequency, however with could increase by 4,000. The total

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hours)

CDC Award Recipients ...... Performance Progress and Monitoring Re- 5,200 1 2 port (PPMR)—Att. A–F. CDC Award Recipients ...... Performance Progress and Monitoring Re- 1,632 1 5/60 port (PPMR)—Att. G. NHSS Award Recipients ...... Performance Progress and Monitoring Re- 60 1 41 port (PPMR)—Att. A–F.

Jeffrey M. Zirger, ADDRESSES: You may submit comments, publishing this notice of a proposed Lead, Information Collection Review Office, identified by Docket No. CDC–2019– data collection as described below. Office of Scientific Integrity, Office of Science, 0071 by any of the following methods: The OMB is particularly interested in Centers for Disease Control and Prevention. • Federal eRulemaking Portal: comments that will help: [FR Doc. 2019–18209 Filed 8–22–19; 8:45 am] Regulations.gov. Follow the instructions 1. Evaluate whether the proposed BILLING CODE 4163–18–P for submitting comments. collection of information is necessary • Mail: Jeffrey M. Zirger, Information for the proper performance of the Collection Review Office, Centers for functions of the agency, including DEPARTMENT OF HEALTH AND Disease Control and Prevention, 1600 whether the information will have HUMAN SERVICES Clifton Road NE, MS–D74, Atlanta, practical utility; Georgia 30329. 2. Evaluate the accuracy of the Centers for Disease Control and Instructions: All submissions received agency’s estimate of the burden of the Prevention must include the agency name and proposed collection of information, [60Day–19–0765; Docket No. CDC–2019– Docket Number. CDC will post, without including the validity of the 0071] change, all relevant comments to methodology and assumptions used; Regulations.gov. 3. Enhance the quality, utility, and Proposed Data Collection Submitted Please note: Submit all comments clarity of the information to be for Public Comment and through the Federal eRulemaking portal collected; and Recommendations (regulations.gov) or by U.S. mail to the 4. Minimize the burden of the address listed above. collection of information on those who AGENCY: Centers for Disease Control and are to respond, including through the FOR FURTHER INFORMATION CONTACT: To Prevention (CDC), Department of Health use of appropriate automated, request more information on the and Human Services (HHS). electronic, mechanical, or other proposed project or to obtain a copy of ACTION: Notice with comment period. technological collection techniques or the information collection plan and other forms of information technology, SUMMARY: The Centers for Disease instruments, contact Jeffrey M. Zirger, e.g., permitting electronic submissions Control and Prevention (CDC), as part of Information Collection Review Office, of responses. Centers for Disease Control and its continuing efforts to reduce public 5. Assess information collection costs. burden and maximize the utility of Prevention, 1600 Clifton Road NE, MS– government information, invites the D74, Atlanta, Georgia 30329; phone: Proposed Project general public and other Federal 404–639–7570; Email: [email protected]. CDC Fellowship Management System agencies to comment on proposed and/ SUPPLEMENTARY INFORMATION: Under the (OMB Control No. 0920–0765, Exp. 01/ or continuing information collections, Paperwork Reduction Act of 1995 (PRA) 21/2021)—Revision—Division of as required by the Paperwork Reduction (44 U.S.C. 3501–3520), Federal agencies Scientific Education and Professional Act of 1995. This notice invites must obtain approval from the Office of Development (DSEPD), Center for comments on a request for a revision of Management and Budget (OMB) for each Surveillance, Education, and Laboratory an approved information collection collection of information they conduct Services (CSELS), Centers for Disease titled, CDC’s Fellowship Management or sponsor. In addition, the PRA also Control and Prevention (CDC). System (OMB Control No. 0920–0765). requires Federal agencies to provide a CDC uses the information collected for 60-day notice in the Federal Register Background and Brief Description processes that aid and enhance the concerning each proposed collection of DSEPD requests a three-year Revision selection of fellowship participants and information, including each new to continue the use of the CDC host sites and to track participant proposed collection, each proposed Fellowship Management System (FMS) information that helps strengthen the extension of existing collection of to collect data under the approved OMB current, emerging, and ever-changing information, and each reinstatement of Control No. 0920–0765. CDC uses FMS public health workforce. previously approved information to collect, process, and manage data DATES: CDC must receive written collection before submitting the from nonfederal applicants seeking comments on or before October 22, collection to the OMB for approval. To training or public health support 2019. comply with this requirement, we are services through CDC fellowships. FMS

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is used to electronically submit will make it easier for additional agencies; federal government agencies, fellowship applications, fellowship host fellowships to choose to use FMS. The including CDC and Department of site proposals, and to maintain increased efficiencies will allow Health and Human Services’ (HHS) fellowship alumni directories online. programs to conduct their operational divisions, such as Centers FMS is a flexible and robust electronic administrative data collection and for Medicare & Medicaid Services; and information system that is standardized monitor fellows’ learning outcomes with to nongovernmental organizations, and tailored for each CDC fellowship, a reduced burden and minimal including academic institutions, tribal collecting only the minimum amount of development requirements. organizations, and private public health information needed. Thus, streamlining The mission of DSEPD is to improve organizations. data management for CDC and reducing health outcomes through a competent, the burden for respondents. FMS is key sustainable, and empowered public A three-year revision will allow all to CDC’s ability to protect the public’s health workforce. Professionals in fellowship applicants, public health health by supporting training public health, epidemiology, medicine, agencies that host fellowship opportunities that strengthen the public economics, information science, participants, and fellowship alumni the health workforce. veterinary medicine, nursing, public continued use of FMS for submission of The proposed Revision will policy, and other related professionals electronic data. The annual burden table contribute significant enhancements seek opportunities, through CDC reflects OMB-approved changes since and provide CDC with an efficient, fellowships, to broaden their 2017. There is no cost to respondents effective, and secure electronic knowledge, and skills to improve the other than their time. Total Burden mechanism for collecting, processing, science and practice of public health. Hours requested are 6361. There are no and monitoring fellowship information. CDC fellows are assigned to state, tribal, costs to respondents other than their The update to the technology platform local, and territorial public health time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Total burden Type of respondents Form name respondents responses per response (in hours) respondent (in hours)

Fellowship applicants ...... FMS Application Module ...... 2,216 1 105/60 3,878 Subset of FMS Fellowship Appli- FMS Application Module ...... ** 200 1 30/60 100 cants **. Reference Letter Writers ...... FMS Application Module ...... 4,412 1 15/60 1,103 Public Health Agency or Organiza- FMS Activity Tracking Module ...... 350 2 15/60 175 tion Staff. Fellowship Alumni ...... FMS Alumni Directory ...... 1,732 1 15/60 433 Public Health Agency or Organiza- FMS Host Site Module ...... 448 1 90/60 672 tion Staff.

Total ...... 6,361 ** Subset of the total 2216 applicants.

Jeffrey M. Zirger, published a ‘‘Proposed Data Collection (c) Enhance the quality, utility, and Lead, Information Collection Review Office, Submitted for Public Comment and clarity of the information to be Office of Scientific Integrity, Office of Science, Recommendations’’ notice on March 4, collected; Centers for Disease Control and Prevention. 2019 to obtain comments from the (d) Minimize the burden of the [FR Doc. 2019–18210 Filed 8–22–19; 8:45 am] public and affected agencies. CDC did collection of information on those who BILLING CODE 4163–18–P not receive comments related to the are to respond, including, through the previous notice. This notice serves to use of appropriate automated, allow an additional 30 days for public electronic, mechanical, or other DEPARTMENT OF HEALTH AND and affected agency comments. HUMAN SERVICES technological collection techniques or CDC will accept all comments for this other forms of information technology, Centers for Disease Control and proposed information collection project. e.g., permitting electronic submission of Prevention The Office of Management and Budget responses; and [30Day–19–0010] is particularly interested in comments (e) Assess information collection that: costs. Agency Forms Undergoing Paperwork (a) Evaluate whether the proposed To request additional information on Reduction Act Review collection of information is necessary the proposed project or to obtain a copy for the proper performance of the In accordance with the Paperwork of the information collection plan and Reduction Act of 1995, the Centers for functions of the agency, including instruments, call (404) 639–7570 or Disease Control and Prevention (CDC) whether the information will have send an email to [email protected]. Direct has submitted the information practical utility; written comments and/or suggestions collection request titled Birth Defects (b) Evaluate the accuracy of the regarding the items contained in this Study To Evaluate Pregnancy exposureS agencies estimate of the burden of the notice to the Attention: CDC Desk (BD–STEPS) to the Office of proposed collection of information, Officer, Office of Management and Management and Budget (OMB) for including the validity of the Budget, 725 17th Street NW, review and approval. CDC previously methodology and assumptions used; Washington, DC 20503 or by fax to (202)

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395–5806. Provide written comments Defects Program’’ (MACDP) and the number of changes, many reflecting within 30 days of notice publication. ‘‘National Birth Defects Prevention increased emphasis on birth defects Study’’ (NBDPS). Proposed Project with established or suspected In its current form, CDC conducts association with maternal infection. Birth Defects Study To Evaluate birth defects surveillance through the Five new birth defect case groups will Pregnancy exposureS (OMB Control No. Birth Defects Study To Evaluate be added. In addition, the maternal 0920–0010, Exp. 02/29/2020)— Pregnancy exposureS (BD–STEPS, OMB interviews will include new questions Revision—National Center on Birth No. 0920–0010). BD–STEPS is a CDC- on infections, travel history, and Defects and Developmental Disabilities funded collaborative effort involving six marijuana use during pregnancy. The (NCBDDD), Centers for Disease Control CDC-funded, state-based Centers for new case groups and questions will and Prevention (CDC). Birth Defects Research and Prevention increase the estimated burden per Background and Brief Description (CBDRP) that have legislative authority interview from 45 minutes to 55 to collect population-based information Birth defects are associated with minutes. CBDRPs will also begin asking on infants with major congenital substantial morbidity and mortality in mothers for permission to access malformations (Arkansas, California, the United States. About one in every 33 information on reportable infectious Iowa, Massachusetts, New York, and babies is born with a birth defect, which diseases from their state health North Carolina). CDC serves as an are the leading cause of infant mortality departments. The estimated burden per additional site on behalf of Georgia. and the fifth leading cause of loss of response is 15 minutes. CDC will Information collection for BD–STEPS is potential years of life before age 65. One discontinue plans for a medical records based on a case-control design that in five infant deaths is due to birth review that was previously approved builds upon information obtained from defects. but never implemented. CDC’s National Center on Birth state-based vital records and birth defects tracking systems. At all CBDRP Additional changes will also affect Defects and Development Disabilities burden estimates. The estimated (NCBDDD) works to identify causes of sites, mothers who have given birth to infants with birth defects are invited to number of case interviews per site will birth defects, improve the health of increase from 200 to 270, and the those living with birth defects, and find participate in a computer-assisted number of control interviews per site and promote opportunities for telephone interview (CATI) to discuss will increase from 75 to 100. The prevention. For example, vaccination their medical history, pregnancies, number of interviews with mothers who programs have reduced the incidence of environmental exposures, and congenital rubella syndrome, Rh medications. In addition, interviews are gave birth to a stillborn infant will hemolytic disease of the newborn can be conducted with mothers of control- remain constant (220 interviews per site prevented by appropriate medical infants from each CBDRP, selected for the two CBDRP sites participating in practice, and genetic counseling can randomly from live-born infants without this information collection activity, plus provide parents with information about a major birth defect. Controls are 100 control interviews per site). The the increased risk of Down syndrome identified either from vital records number of respondents who complete associated with advanced maternal age. (birth certificates) or from hospitals of the online occupational questionnaire Perhaps most importantly, folic acid birth, and represent the birth population will increase but there is no change to intake before and during pregnancy can from which the case infants were the estimated burden per response of 20 prevent many cases of fatal or identified. Two CBDRP sites (Arkansas minutes. The number of mothers who permanently disabling neural tube and Massachusetts) also conduct are asked to provide permission for defects, such as anencephaly and spina interviews with mothers of infants who bloodspot retrieval will also increase, bifida. are stillborn without major birth defects, but the burden per response will not For most birth defects, however, the and controls. In states that allow change. causes are not known, making retrieval of blood spots, BD–STEPS CDC will use BD–STEPS data to prevention efforts challenging to participants are asked for permission to identify modifiable maternal risk factors share a portion of the newborn blood develop. To improve understanding of and to apply findings to prevention spot for the child who is part of the the causes of birth defects, CDC initiated programs for birth defects and active surveillance of birth defects in study, and for mothers of multiples, the stillbirths. Data will also be used to the wake of the thalidomide tragedy. co-siblings of this child. Finally, the examine hypotheses for gene- The system has been in continuous interviews identify mothers who work environment interactions involved in operation since 1967 and is the longest in one of eight occupational categories running active surveillance system in of interest. These respondents are asked the etiology of birth defects. the world. Over this period CDC to complete a supplemental online OMB approval is requested for three adapted the system to both utilize and questionnaire designed to assess the years. Participation is voluntary and contribute to new findings about the impact of the workplace on there are no costs to respondents other epidemiology and causes of birth reproductive outcomes. than their time. The total estimated defects. Previous related efforts include During the next OMB approval annualized burden will increase from the ‘‘Metropolitan Atlanta Congenital period, CDC plans to implement a 3,034 hours to 4,433 hours.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hours)

Mothers of birth defects cases and controls .. Telephone Consent Script and BD-STEPS 3,030 1 55/60 Computer Assisted Telephone Interview. Mothers of birth defects cases and controls .. Consent for bloodspot retrieval ...... 1,850 1 15/60

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

Average Number of Number of burden per Type of respondent Form name respondents responses per response respondent (in hours)

Mothers of birth defects cases and controls .. Online Occupational Questionnaire ...... 830 1 20/60 Mothers of birth defects cases and controls .. Infectious Disease Request Form ...... 2,590 1 15/60 Mothers of stillbirths and controls ...... Telephone consent and supplemental inter- 640 1 25/60 view.

Jeffrey M. Zirger, recommendations must be submitted in 1320.3(c) and includes agency requests Lead, Information Collection Review Office, any one of the following ways: or requirements that members of the Office of Scientific Integrity, Office of Science, 1. Electronically. You may send your public submit reports, keep records, or Centers for Disease Control and Prevention. comments electronically to http:// provide information to a third party. [FR Doc. 2019–18207 Filed 8–22–19; 8:45 am] www.regulations.gov. Follow the Section 3506(c)(2)(A) of the PRA BILLING CODE 4163–18–P instructions for ‘‘Comment or requires federal agencies to publish a Submission’’ or ‘‘More Search Options’’ 60-day notice in the Federal Register to find the information collection concerning each proposed collection of DEPARTMENT OF HEALTH AND document(s) that are accepting information, including each proposed HUMAN SERVICES comments. extension or reinstatement of an existing 2. By regular mail. You may mail collection of information, before Centers for Medicare & Medicaid written comments to the following Services submitting the collection to OMB for address: CMS, Office of Strategic approval. To comply with this [Document Identifier: CMS–367a–d] Operations and Regulatory Affairs, requirement, CMS is publishing this Division of Regulations Development, notice. Agency Information Collection Attention: Document Identifier/OMB Activities: Proposed Collection; Control Number ll, Room C4–26–05, Information Collection Comment Request 7500 Security Boulevard, Baltimore, Maryland 21244–1850. 1. Type of Information Collection AGENCY: Centers for Medicare & To obtain copies of a supporting Request: Revision of a currently Medicaid Services, HHS. statement and any related forms for the approved collection; Title of ACTION: Notice. proposed collection(s) summarized in Information Collection: Medicaid Drug this notice, you may make your request Program; Use: Labelers transmit drug SUMMARY: The Centers for Medicare & using one of following: product and pricing data to CMS within Medicaid Services (CMS) is announcing 1. Access CMS’ website address at 30 days after the end of each calendar an opportunity for the public to website address at https://www.cms.gov/ month and quarter. CMS calculates the comment on CMS’ intention to collect Regulations-and-Guidance/Legislation/ unit rebate amount (URA) and the unit information from the public. Under the PaperworkReductionActof1995/PRA- rebate offset amount (UROA) for each Paperwork Reduction Act of 1995 (the Listing.html. new drug application (NDC) and PRA), federal agencies are required to 2. Email your request, including your distributes to all State Medicaid publish notice in the Federal Register address, phone number, OMB number, agencies. States use the URA to invoice concerning each proposed collection of and CMS document identifier, to the labeler for rebates and the UROA to information (including each proposed [email protected]. report onto the CMS–64. The monthly extension or reinstatement of an existing 3. Call the Reports Clearance Office at data is used to calculate Federal Upper collection of information) and to allow (410) 786–1326. Limit (FUL) prices for applicable drugs 60 days for public comment on the FOR FURTHER INFORMATION CONTACT: and for states that opt to use this data proposed action. Interested persons are William N. Parham at (410) 786–4669. to establish their pharmacy invited to send comments regarding our SUPPLEMENTARY INFORMATION: reimbursement methodology. Form burden estimates or any other aspect of Number: CMS–367 (OMB control this collection of information, including Contents number: 0938–0578); Frequency: the necessity and utility of the proposed This notice sets out a summary of the Monthly, quarterly, and on occasion; information collection for the proper use and burden associated with the Affected Public: Private sector (Business performance of the agency’s functions, following information collections. More or other for-profits); Number of the accuracy of the estimated burden, detailed information can be found in Respondents: 743; Total Annual ways to enhance the quality, utility, and each collection’s supporting statement Responses: 14,117; Total Annual Hours: clarity of the information to be and associated materials (see 219,185. (For policy questions regarding collected, and the use of automated ADDRESSES). this collection contact Andrea collection techniques or other forms of Wellington at 410–786–3490.) information technology to minimize the CMS–367a–d Medicaid Drug Program Dated: August 20, 2019. information collection burden. Under the PRA (44 U.S.C. 3501– DATES: Comments must be received by 3520), federal agencies must obtain William N. Parham, III, October 22, 2019. approval from the Office of Management Director, Paperwork Reduction Staff, Office ADDRESSES: When commenting, please and Budget (OMB) for each collection of of Strategic Operations and Regulatory reference the document identifier or information they conduct or sponsor. Affairs. OMB control number. To be assured The term ‘‘collection of information’’ is [FR Doc. 2019–18214 Filed 8–22–19; 8:45 am] consideration, comments and defined in 44 U.S.C. 3502(3) and 5 CFR BILLING CODE 4120–01–P

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DEPARTMENT OF HEALTH AND Dated: August 15, 2019. default.htm and scroll down to the HUMAN SERVICES Mary Lazare, appropriate advisory committee meeting Principal Deputy Administrator. link, or call the advisory committee Administration for Community Living [FR Doc. 2019–18219 Filed 8–22–19; 8:45 am] information line to learn about possible BILLING CODE 4154–01–P modifications before coming to the Notice of Intent To Award a Single- meeting. Source Cooperative Agreement to the SUPPLEMENTARY INFORMATION: Gerontology Institute, University of DEPARTMENT OF HEALTH AND Agenda: On November 8, 2019, the Massachusetts Boston HUMAN SERVICES VRBPAC will meet in an open session to discuss and make recommendations AGENCY: Administration for Community Food and Drug Administration on the development of chikungunya Living, HHS. [Docket No. FDA–2019–N–3748] vaccines. ACTION: Notice. FDA intends to make background Vaccines and Related Biological material available to the public no later SUMMARY: The Administration for Products Advisory Committee; Notice than 2 business days before the meeting. Community Living (ACL) announces the of Meeting If FDA is unable to post the background material on its website prior to the intent to award a single-source AGENCY: Food and Drug Administration, meeting, the background material will cooperative agreement in the amount of HHS. be made publicly available at the $75,000 to the Gerontology Institute, ACTION: Notice. University of Massachusetts Boston location of the advisory committee (UMass Boston) to support and SUMMARY: The Food and Drug meeting, and the background material stimulate the expansion of work already Administration (FDA or Agency) will be posted on FDA’s website after underway by UMass Boston in announces a forthcoming public the meeting. Background material is providing pension counseling services advisory committee meeting of the available at https://www.fda.gov/ to residents of the State of Illinois. Vaccines and Related Biological AdvisoryCommittees/Calendar/ Products Advisory Committee default.htm. Scroll down to the DATES: The award will be issued for a (VRBPAC). The general function of the appropriate advisory committee meeting project period to run concurrently with committee is to provide advice and link. the existing grantee’s budget period. recommendations to the Agency on Procedure: Interested persons may present data, information, or views, FOR FURTHER INFORMATION CONTACT: Eva FDA’s regulatory issues. The meeting LaManna, Office of Elder Rights and will be open to the public. orally or in writing, on issues pending before the committee. Written Adult Protective Services, DATES: The meeting will be held on submissions may be made to the contact Administration on Aging, November 8, 2019, from 8:30 a.m. to person on or before November 1, 2019. Administration for Community Living, 4:30 p.m. Oral presentations from the public will 330 C Street SW, Washington, DC ADDRESSES: FDA White Oak Campus, be scheduled between approximately 20024. Telephone: 202–795–7311; 10903 New Hampshire Ave., Bldg. 31 1:35 p.m. and 2:35 p.m. Those Email: [email protected]. Conference Center, the Great Room (Rm. individuals interested in making formal SUPPLEMENTARY INFORMATION: The ACL’s 1503), Silver Spring, MD 20993–0002. oral presentations should notify the Pension Counseling & Information For those unable to attend in person, the contact person and submit a brief Program consists of six regional pension meeting will also be webcast and will be statement of the general nature of the counseling projects, covering 30 states. available at the following link: https:// evidence or arguments they wish to The state of Illinois, with 64 million collaboration.fda.gov/vrbpac110819/. present, the names and addresses of workers and a pension participation rate Answers to commonly asked questions proposed participants, and an of 42%, is one of the largest states including information regarding special indication of the approximate time without an ACL-funded pension accommodations due to a disability, requested to make their presentation on counseling project. The Pension Action visitor parking, and transportation may or before October 24, 2019. Time Center at UMass Boston, which be accessed at: https://www.fda.gov/ allotted for each presentation may be conducts ACL’s New England Pension AdvisoryCommittees/AboutAdvisory limited. If the number of registrants Assistance Project, is currently Committees/ucm408555.htm. requesting to speak is greater than can providing pension counseling services FOR FURTHER INFORMATION CONTACT: be reasonably accommodated during the to residents of Illinois with funding Serina Hunter-Thomas, Center for scheduled open public hearing session, from the Retirement Research Biologics Evaluation and Research, FDA may conduct a lottery to determine Foundation. Additional funds are Food and Drug Administration, 10903 the speakers for the scheduled open needed to leverage the foundation’s New Hampshire Ave., Silver Spring, MD public hearing session. The contact funding, in order to ensure that the 20993–0002, 240–402–5771, person will notify interested persons current provision of services to Illinois [email protected], or regarding their request to speak by residents will be continued. This FDA Advisory Committee Information October 25, 2019. supplementary funding would be Line, 1–800–741–8138 (301–443–0572 Persons attending FDA’s advisory provided for the approved period. in the Washington, DC area). A notice in committee meetings are advised that the the Federal Register about last minute Agency is not responsible for providing This program is authorized under modifications that impact a previously access to electrical outlets. Title II of the Older Americans Act announced advisory committee meeting FDA welcomes the attendance of the (OAA) (42 U.S.C. 3032), as amended by cannot always be published quickly public at its advisory committee the Older Americans Act Amendments enough to provide timely notice. meetings and will make every effort to of 2006, Public Law 109–365. Therefore, you should always check the accommodate persons with disabilities. (Catalog of Federal Domestic Assistance Agency’s website at https:// If you require accommodations due to a 93.048) www.fda.gov/AdvisoryCommittees/ disability, please contact Serina Hunter-

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Thomas at least 7 days in advance of the Place: National Institutes of Health, 6701 Place: Residence Inn Capital View, 2850 meeting. Rockledge Drive, Bethesda, MD 20892 South Potomac Avenue, Arlington, VA (Virtual Meeting). 22202. FDA is committed to the orderly Contact Person: Boris P Sokolov, Ph.D., Contact Person: M. Catherine Bennett, conduct of its advisory committee Scientific Review Officer, Center for Ph.D., Scientific Review Officer, Center for meetings. Please visit our website at: Scientific Review, National Institutes of Scientific Review, National Institutes of https://www.fda.gov/Advisory Health, 6701 Rockledge Drive, Room 5217A, Health, 6701 Rockledge Drive, Room 5182, Committees/AboutAdvisoryCommittees/ MSC 7846, Bethesda, MD 20892, 301–408– MSC 7846 Bethesda, MD 20892, 301–435– ucm111462.htm for procedures on 9115, [email protected]. 1766, [email protected]. public conduct during advisory (Catalogue of Federal Domestic Assistance (Catalogue of Federal Domestic Assistance committee meetings. Program Nos. 93–306, Comparative Program Nos. 93.306, Comparative Medicine; Medicine; 93.333, Clinical Research, 93.306, 93.333, Clinical Research, 93.306, 93.333, Notice of this meeting is given under 93.333, 93.337, 93.393–93.396, 93.837– 93.337, 93.393–93.396, 93.837–93.844, the Federal Advisory Committee Act (5 93.844, 93.846–93.878, 93.892, 93.893, 93.846–93.878, 93.892, 93.893, National U.S.C. app. 2). National Institutes of Health, HHS) Institutes of Health, HHS) Dated: August 16, 2019. Dated: August 19, 2019. Dated: August 19, 2019. Lowell J. Schiller, Sylvia L. Neal, Sylvia L. Neal, Principal Associate Commissioner for Policy. Program Analyst, Office of Federal Advisory Program Analyst, Office of Federal Advisory [FR Doc. 2019–18199 Filed 8–22–19; 8:45 am] Committee Policy. Committee Policy. BILLING CODE 4164–01–P [FR Doc. 2019–18177 Filed 8–22–19; 8:45 am] [FR Doc. 2019–18176 Filed 8–22–19; 8:45 am] BILLING CODE 4140–01–P BILLING CODE 4140–01–P

DEPARTMENT OF HEALTH AND HUMAN SERVICES DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND HUMAN SERVICES HUMAN SERVICES National Institutes of Health National Institutes of Health National Institutes of Health Center for Scientific Review; Notice of Closed Meetings Center for Scientific Review; Notice of Submission for OMB Review; 30-Day Closed Meetings Comment Request; The Clinical Trials Pursuant to section 10(d) of the Pursuant to section 10(d) of the Reporting Program (CTRP) Database Federal Advisory Committee Act, as Federal Advisory Committee Act, as (NCI) amended, notice is hereby given of the amended, notice is hereby given of the following meetings. AGENCY: National Institutes of Health, following meetings. HHS. The meetings will be closed to the The meetings will be closed to the public in accordance with the public in accordance with the ACTION: Notice. provisions set forth in sections provisions set forth in sections SUMMARY: In compliance with the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Paperwork Reduction Act of 1995, the as amended. The grant applications and as amended. The grant applications and National Institutes of Health (NIH) has the discussions could disclose the discussions could disclose submitted to the Office of Management confidential trade secrets or commercial confidential trade secrets or commercial and Budget (OMB) a request for review property such as patentable material, property such as patentable material, and approval of the information and personal information concerning and personal information concerning collection listed below. individuals associated with the grant individuals associated with the grant DATES: applications, the disclosure of which applications, the disclosure of which Comments regarding this would constitute a clearly unwarranted would constitute a clearly unwarranted information collection are best assured invasion of personal privacy. invasion of personal privacy. of having their full effect if received within 30 days of the date of this Name of Committee: Cardiovascular and Name of Committee: Healthcare Delivery publication. Respiratory Sciences Integrated Review and Methodologies Integrated Review Group; Group; Lung Cellular, Molecular, and Health Services Organization and Delivery ADDRESSES: Written comments and/or Immunobiology Study Section. Study Section. suggestions regarding the item(s) Date: September 24–25, 2019. Date: September 23–24, 2019. contained in this notice, especially Time: 8:00 a.m. to 3:00 p.m. Time: 8:30 a.m. to 6:00 p.m. regarding the estimated public burden Agenda: To review and evaluate grant Agenda: To review and evaluate grant and associated response time, should be applications. applications. directed to the: Office of Management Place: Bahia Resort Hotel, 998 West Place: New Orleans Marriott, 555 Canal and Budget, Office of Regulatory Affairs, Mission Drive, San Diego, CA 92109. Street, New Orleans, LA 70130. _ Contact Person: George M. Barnas, Ph.D., Contact Person: Jacinta Bronte-Tinkew, OIRA [email protected] or by Scientific Review Officer, Center for Ph.D., Scientific Review Officer, Center for fax to 202–395–6974, Attention: NIH Scientific Review, National Institutes of Scientific Review, National Institutes of Desk Officer. Health, 6701 Rockledge Drive, Room 2180, Health, 6701 Rockledge Drive, Room 3164, FOR FURTHER INFORMATION CONTACT: To MSC 7818, Bethesda, MD 20892, 301–435– MSC 7770, Bethesda, MD 20892, (301) 806– request more information on the 0696, [email protected]. 0009, [email protected]. proposed project or to obtain a copy of Name of Committee: Brain Disorders and Name of Committee: Integrative, the data collection plans and Clinical Neuroscience Integrated Review Functional and Cognitive Neuroscience instruments, contact: Gisele Sarosy, MD, Group; Pathophysiological Basis of Mental Integrated Review Group; Somatosensory and Disorders and Addictions Study Section. Pain Systems Study Section. Coordinating Center for Clinical Trials Date: September 25–26, 2019. Date: September 24–25, 2019. (CCCT), National Cancer Institute, 9609 Time: 10:00 a.m. to 7:00 p.m. Time: 8:00 a.m. to 4:00 p.m. Medical Center Drive, 6W134, Agenda: To review and evaluate grant Agenda: To review and evaluate grant Rockville, MD 20852 or call non-toll- applications. applications. free number 240–276–6172 or Email

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your request, including your address to: In compliance with Section all NCI-supported clinical research. This [email protected]. 3507(a)(1)(D) of the Paperwork resource allows the NCI to consolidate SUPPLEMENTARY INFORMATION: This Reduction Act of 1995, the National reporting, aggregate information and proposed information collection was Institutes of Health (NIH) has submitted reduce redundant submissions. previously published in the Federal to the Office of Management and Budget Information is submitted by clinical Register on June 3, 2019, page 25550 (OMB) a request for review and research administrators as designees of (Vol. 84, No. 106 FR 25550) and allowed approval of the information collection clinical investigators who conduct NCI- 60 days for public comment. No public listed below. supported clinical research. The comments were received. The purpose Proposed Collection: The Clinical designees can electronically access the of this notice is to allow an additional Trials Reporting Program (CTRP) CTRP website to complete the initial 30 days for public comment. The Database (NCI), 0925–0600, Expiration trial registration. Subsequent to National Cancer Institute (NCI), Date 08/31/2019—REVISION, National registration, four amendments and four National Institutes of Health, may not Cancer Institute (NCI), National study subject accrual updates occur per conduct or sponsor, and the respondent Institutes of Health (NIH). trial annually. is not required to respond to, an Need and Use of Information information collection that has been Collection: The Clinical Trials Reporting OMB approval is requested for 3 extended, revised, or implemented on or Program (CTRP) is an electronic years. There are no costs to respondents after October 1, 1995, unless it displays resource that serves as a single, other than their time. The estimated a currently valid OMB control number. definitive source of information about annualized burden hours are 18,000.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of time per Total annual Form name Type of respondents respondents responses per response burden hours respondent (in hours)

Initial Registration ...... Clinical Trials ...... 3,000 1 1 3,000 Amendment ...... 1,500 4 1 6,000 Update ...... 1,500 4 1 6,000 Accrual Updates ...... 3,000 4 15/60 3,000

Total ...... 27,000 ...... 18,000

Diane Kreinbrink, Emphasis Panel; CTSA Collaborative DEPARTMENT OF THE INTERIOR Project Clearance Liaison, National Cancer Innovation Awards Review Meeting. Institute, National Institutes of Health. Date: September 25, 2019. Fish and Wildlife Service Time: 8:00 a.m. to 5:00 p.m. [FR Doc. 2019–18202 Filed 8–22–19; 8:45 am] [Docket No. FWS–HQ–IA–2019–0057; BILLING CODE 4140–01–P Agenda: To review and evaluate grant FXIA16710900000–190–FF09A30000] applications. Place: National Institutes of Health, One Foreign Endangered Species; Receipt DEPARTMENT OF HEALTH AND Democracy Plaza, 6701 Democracy of Permit Applications HUMAN SERVICES Boulevard, Bethesda, MD 20892 (Virtual Meeting). AGENCY: Fish and Wildlife Service, National Institutes of Health Contact Person: M. Lourdes Ponce, Ph.D., Interior. Scientific Review Officer, Office of Scientific ACTION: Notice of receipt of permit National Center for Advancing Review, National Center for Advancing applications; request for comments. Translational Sciences; Notice of Translational, Sciences (NCATS), National Closed Meeting Institutes Of Health, 6701 Democracy Blvd., SUMMARY: We, the U.S. Fish and Democracy 1, Room 1073, Bethesda, MD Wildlife Service, invite the public to Pursuant to section 10(d) of the 20892, 301–435–0810, lourdes.ponce@ comment on applications to conduct Federal Advisory Committee Act, as nih.gov. certain activities with foreign species amended, notice is hereby given of the (Catalogue of Federal Domestic Assistance that are listed as endangered under the following meeting. Program Nos. 93.859, Pharmacology, Endangered Species Act (ESA). With The meeting will be closed to the Physiology, and Biological Chemistry some exceptions, the ESA prohibits public in accordance with the Research; 93.350, B—Cooperative activities with listed species unless provisions set forth in sections Agreements; 93.859, Biomedical Research Federal authorization is issued that 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., and Research Training, National Institutes of allows such activities. The ESA also as amended. The grant applications and Health, HHS) requires that we invite public comment the discussions could disclose before issuing permits for any activity confidential trade secrets or commercial Dated: August 19, 2019. otherwise prohibited by the ESA with property such as patentable material, Melanie J. Pantoja, respect to any endangered species. and personal information concerning Program Analyst, Office of Federal Advisory DATES: We must receive comments by individuals associated with the grant Committee Policy. September 23, 2019. applications, the disclosure of which [FR Doc. 2019–18178 Filed 8–22–19; 8:45 am] ADDRESSES: would constitute a clearly unwarranted BILLING CODE 4140–01–P Obtaining Documents: The invasion of personal privacy. applications, application supporting Name of Committee: National Center for materials, and any comments and other Advancing Translational Sciences Special materials that we receive will be

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available for public inspection at http:// Act (5 U.S.C. 552a) or Freedom of naped crane (Grus vipio) to the www.regulations.gov in Docket No. Information Act (5 U.S.C. 552). Assiniboine Park Zoo in Winnipeg, FWS–HQ–IA–2019–0057. Manitoba, Canada, for the purpose of C. Who will see my comments? Submitting Comments: When enhancing the survival of the species. submitting comments, please specify the If you submit a comment at http:// This notification is for a single export. name of the applicant and the permit www.regulations.gov, your entire number at the beginning of your comment, including any personal Applicant: Mike Grove Zoo, Lodi, CA; comment. You may submit comments identifying information, will be posted Permit No. 85560C by one of the following methods: on the website. If you submit a • The applicant requests a captive-bred Internet: http://www.regulations. hardcopy comment that includes wildlife registration under 50 CFR gov. Search for and submit comments on personal identifying information, such 17.21(g) for northern bald ibis Docket No. FWS–HQ–IA–2019–0057. as your address, phone number, or • (Geronticus eremita) and black-and- U.S. mail or hand-delivery: Public email address, you may request at the white ruffed lemur (Varecia variegata) Comments Processing, Attn: Docket No. top of your document that we withhold to enhance the propagation or survival FWS–HQ–IA–2019–0057; U.S. Fish and this information from public review. of the species. This notification covers Wildlife Service Headquarters, MS: However, we cannot guarantee that we activities to be conducted by the JAO/1N; 5275 Leesburg Pike; Falls will be able to do so. Moreover, all applicant over a 5-year period. Church, VA 22041–3803. submissions from organizations or For more information, see Public businesses, and from individuals Applicant: Turtle Conservancy, Ojai, Comment Procedures under identifying themselves as CA; Permit No. 33202D SUPPLEMENTARY INFORMATION. representatives or officials of The applicant requests a captive-bred FOR FURTHER INFORMATION CONTACT: organizations or businesses, will be wildlife registration under 50 CFR Monica Thomas, by phone at 703–358– made available for public disclosure in 17.21(g) for Galapagos tortoise 2104, via email at [email protected], or their entirety. (Geochelone nigra) and Madagascar via the Federal Relay Service at 800– II. Background radiated tortoise (Geochelone radiata), 877–8339. to enhance the propagation or survival SUPPLEMENTARY INFORMATION: To help us carry out our conservation responsibilities for affected species, and of the species. This notification covers I. Public Comment Procedures in consideration of section 10(c) of the activities to be conducted by the applicant over a 5-year period. A. How do I comment on submitted Endangered Species Act of 1973, as applications? amended (ESA; 16 U.S.C. 1531 et seq.), Applicant: Peter Koplos, El Paso, TX; we invite public comments on permit Permit No. 13175A We invite the public and local, State, applications before final action is taken. Tribal, and Federal agencies to comment With some exceptions, the ESA The applicant requests a captive-bred on these applications. Before issuing prohibits certain activities with listed wildlife registration under 50 CFR any of the requested permits, we will species unless Federal authorization is 17.21(g) for Madagascar radiated tortoise take into consideration any information issued that allows such activities. (Geochelone radiata) to enhance the that we receive during the public Permits issued under section 10(a)(1)(A) propagation or survival of the species. comment period. of the ESA allow otherwise prohibited This notification covers activities to be You may submit your comments and activities for scientific purposes or to conducted by the applicant over a 5- materials by one of the methods in enhance the propagation or survival of year period. ADDRESSES. We will not consider the affected species. Service regulations comments sent by email or fax, or to an regarding prohibited activities with Applicant: Robert B. Wier, Hockley, address not in ADDRESSES. We will not endangered species, captive-bred Texas; Permit No. 42192D consider or include in our wildlife registrations, and permits for The applicant requests a permit to administrative record comments we any activity otherwise prohibited by the receive after the close of the comment import a sport-hunted trophy of one ESA with respect to any endangered male bontebok (Damaliscus pygarus) period (see DATES). species are available in title 50 of the culled from a captive herd maintained When submitting comments, please Code of Federal Regulations in part 17. specify the name of the applicant and under the management program of the the permit number at the beginning of III. Permit Applications Republic of South Africa, for the your comment. Provide sufficient purpose of enhancing the propagation or We invite comments on the following survival of the species. information to allow us to authenticate applications: any scientific or commercial data you IV. Next Steps include. The comments and Applicant: Sacramento Zoological recommendations that will be most Society, dba Sacramento Zoo, After the comment period closes, we useful and likely to influence agency Sacramento, CA; Permit No. 34708D will make decisions regarding permit decisions are: (1) Those supported by The applicant requests a permit to issuance. If we issue permits to any of quantitative information or studies; and export one captive-bred female the applicants listed in this notice, we (2) those that include citations to, and mongoose lemur (Eulemur mongoz) to will publish a notice in the Federal analyses of, the applicable laws and the Edmonton Valley Zoo in Edmonton, Register. You may locate the notice regulations. Alberta, Canada, for the purpose of announcing the permit issuance by enhancing the survival of the species. searching http://www.regulations.gov B. May I review comments submitted by This notification is for a single export. for the permit number listed above in others? this document. For example, to find You may view and comment on Applicant: Fort Worth Zoological Park, information about the potential issuance others’ public comments at http:// Fort Worth, TX; Permit No. 34721D of Permit No. 12345A, you would go to www.regulations.gov, unless our The applicant requests a permit to http://www.regulations.gov and search allowing so would violate the Privacy export one captive-bred male white- for ‘‘12345A’’.

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V. Authority Interior, 1849 C Street NW, Room 7112, administrative updates to remaining Washington, DC 20240. sections to accurately reflect the We issue this notice under the • authority of the Endangered Species Act Hand Delivery/Courier: Teri management and scope of the system in of 1973, as amended (16 U.S.C. 1531 et Barnett, Departmental Privacy Officer, accordance with the Office of seq.), and its implementing regulations. U.S. Department of the Interior, 1849 C Management and Budget (OMB) Street NW, Room 7112, Washington, DC Circular A–108, ‘‘Federal Agency Monica Thomas, 20240. Responsibilities for Review, Reporting, Management Analyst, Branch of Permits, Instructions: All submissions received and Publication under the Privacy Act.’’ Division of Management Authority. must include the agency name and OST is proposing to modify existing [FR Doc. 2019–18203 Filed 8–22–19; 8:45 am] docket number. All comments received routine uses to provide clarity and BILLING CODE 4333–15–P will be posted without change to http:// transparency, and reflect updates www.regulations.gov, including any consistent with standard DOI routine personal information provided. uses. Routine uses A, B, G and L have DEPARTMENT OF THE INTERIOR Docket: For access to the docket to been modified to provide additional read background documents or clarification on external organizations Office of the Secretary comments received, go to http:// and circumstances where disclosures [DOI–2019–0003; 19XD0120AF DT2300000 www.regulations.gov. are proper and necessary to facilitate the DST000000 54AB00.241A] FOR FURTHER INFORMATION CONTACT: Teri management of the IIM system. Routine Barnett, Departmental Privacy Officer, use A was modified to further clarify Privacy Act of 1974; System of U.S. Department of the Interior, 1849 C disclosures to the Department of Justice Records Street NW, Room 7112, Washington, DC or other Federal agencies when AGENCY: Office of the Special Trustee for 20240, email at DOI_Privacy@ necessary in relation to litigation or American Indians, Interior. ios.doi.gov or by telephone at (202) 208– judicial proceedings. Routine use B was ACTION: Notice of a modified system of 1605. modified to clarify disclosures to a records. SUPPLEMENTARY INFORMATION: congressional office to respond to or resolve an individual’s request made to SUMMARY: Pursuant to the provisions of I. Background that office. Routine use G facilitates the Privacy Act of 1974, as amended, The Department of the Interior (DOI), sharing with other government and the Department of the Interior is issuing Office of the Special Trustee for tribal organizations pursuant to a court a public notice of its intent to modify American Indians (OST) maintains the order or discovery request. Modified the Office of the Special Trustee for Individual Indian Money (IIM) Trust routine use L was revised to separate the American Indians Privacy Act system of Fund—Interior, OS–02 system of sharing of information with the records titled, ‘‘Individual Indian records. This system assists OST in Department of the Treasury to recover Money (IIM) Trust Funds—Interior, OS– meeting the fiduciary responsibilities debts owed to the United States into 02’’. This system helps the Office of the set forth in the American Indian Trust new proposed routine use W to Special Trustee for American Indians Fund Management Reform Act of 1994, distinguish the purpose of the sharing of meet fiduciary responsibilities set forth including management of the receipt, information and promote greater in the American Indian Trust Fund investment, disbursement and transparency. Modified routine use I Management Reform Act of 1994. The administration of money held in trust and new routine use J allow DOI to Department of the Interior is updating for individual Indians and Alaskan share information with appropriate this system to (1) update the system Natives (or their heirs), and Indian Federal agencies or entities when location, (2) propose new and modified Tribes. The OST provides trust services reasonably necessary to respond to a routine uses, (3) update the categories of and information for Indian trust funds breach of personally identifiable records and categories of individuals program management and oversees the information and to prevent, minimize, covered by the system, and (4) provide implementation of trust reforms, trust or remedy the risk of harm to general and administrative updates to accounting and coordination of trust individuals or the Federal Government, remaining sections to accurately reflect policies intra-bureau-wide related to the or assist an agency in locating the management and scope of the management of Indian trust funds and individuals affected by a breach in system. This modified system will be assets. The system also provides accordance with OMB Memorandum included in the Department of the litigation support by analyzing and M–17–12, ‘‘Preparing for and Interior’s inventory of record systems. reconciling the historical collection, Responding to a Breach of Personally DATES: This modified system will be distribution, and disbursement of Identifiable Information.’’ effective upon publication. New or income from IIM accounts, Indian trust OST is proposing new routine uses to modified routine uses will be effective land, and other revenue sources. The facilitate the sharing of information with September 23, 2019. Submit comments system also supports DOI land agencies and organizations to ensure the on or before September 23, 2019. consolidation activities of fractionated efficient and effective management of ADDRESSES: You may send comments, lands and annual tribal trust evaluations the IIM system, or to carry out a identified by docket number [DOI– for Tribes who compact trust programs, statutory responsibility of the DOI or 2019–0003], by any of the following functions, services, and activities under Federal Government. Proposed routine methods: Public Law 93–638 Self-Governance use V facilitates sharing of information • Federal eRulemaking Portal: http:// Compacts on behalf of the Secretary of with the Executive Office of the www.regulations.gov. Follow the the Interior. President to resolve issues concerning instructions for sending comments. OST is publishing this revised notice an individual’s records when requested • Email: [email protected]. to (1) update the system location, (2) by the subject individual. Proposed Include docket number [DOI–2019– propose new and modified routine uses, routine use W allows sharing of 0003] in the subject line of the message. (3) update the categories of records and information with the Department of the • Mail: Teri Barnett, Departmental categories of individuals covered by the Treasury to recover debts owed to the Privacy Officer, U.S. Department of the system, and (4) provide general and United States.

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II. Privacy Act (1) Office of the Special Trustee for participating in the Land Buy-Back The Privacy Act of 1974, 5 U.S.C. American Indians, 4400 Masthead Street Program; members of the public who 552a, embodies fair information practice NE, Albuquerque, New Mexico 87109; make inquiries about the Cobell principles in a statutory framework (2) American Indian Records Settlement payments; acquaintances of governing the means by which Federal Repository, 17501 West 98th Street, IIM account holders, depositors into and agencies collect, maintain, use, and Lenexa, Kansas 66219; claimants against IIM accounts; (3) Bureau of Indian Affairs, disseminate individuals’ records. The individuals who lease, contract, or who Southwest Region, Albuquerque Data Privacy Act applies to records about are permit holders on Indian lands; and Center, 1001 Indian School Road, individuals that are maintained in a individuals with whom OST conducts Albuquerque, New Mexico 87109; ‘‘system of records.’’ A ‘‘system of business. (4) U.S. Department of the Interior, The system also contains information records’’ is a group of any records under Office of the Special Trustee for about private organizations that provide the control of an agency for which American Indians, 1849 C Street NW, contact information about individual information about an individual is Washington, DC 20240; Indian account holders whose retrieved by the name or by some (5) Other program offices that are whereabouts are unknown to OST, identifying number, symbol, or other located at regional and field offices and corporations and other business entities, identifying particular assigned to the at the offices of Indian Tribes that which are not subject to the Privacy Act. individual. The Privacy Act defines an administer trust programs under Indian However, information about individuals individual as a United States citizen or Self-Determination or Self- Governance acting on behalf of corporations and lawful permanent resident. Individuals contracts or compacts; and other business entities may reflect may request access to their own records (6) Offices of contractors under personal information that may be that are maintained in a system of contract to OST. covered by this notice. records in the possession or under the control of the DOI by complying with SYSTEM MANAGER(S): CATEGORIES OF RECORDS IN THE SYSTEM: DOI Privacy Act regulations at 43 CFR Financial Systems Administrator, This system maintains IIM account part 2, subpart K, and following the Office of the Special Trustee for and Tribal trust fund account records; procedures outlined in the Records American Indians, U.S. Department of documents related to financial and Access, Contesting Record, and the Interior, 4400 Masthead Street NE, investment activity; custodianship of Notification Procedures sections of this Albuquerque, New Mexico 87109. investments for IIM accounts and Tribal notice. trust fund accounts; account AUTHORITY FOR MAINTENANCE OF THE SYSTEM: The Privacy Act requires each agency reconciliation information, to publish in the Federal Register a American Indian Trust Fund disbursements, bonds, transfers, and description denoting the existence and Management Reform Act of 1994, Public historical statements of account; character of each system of records that Law 103–412, 108 Stat. 4239; 25 U.S.C. transaction data regarding receipts, and the agency maintains and the routine 116, 117a, 117b, 117c, 118, 119, 120, contact information for individuals who uses of each system. The revised 121, 151, 159, 161a, 162a; 4011, may know the whereabouts of unknown Individual Indian Money Trust Funds 4043(b)(2)(B), Public Law 93–638 Self- locations of beneficiaries; land system of records notice is published in Governance Compacts; 25 U.S.C. ownership and interests in restricted or its entirety below. In accordance with 5 5363(d)(1); 25 CFR 1000.350; 25 CFR fractioned lands; official land buy-back U.S.C. 552a(r), DOI has provided a 1000.355; 25 CFR 1000.365. correspondence, appraisals, maps, report of this system of records to the PURPOSE(S) OF THE SYSTEM: purchase offers, and other documents Office of Management and Budget and The purpose of the system is to related to land consolidation efforts and to Congress. manage the receipt, investment, program activities; and, Tribal trust evaluation data and documentation. The III. Public Participation distribution, and disbursement of IIM account and Tribal trust fund income; records from Tribes and the Bureau of You should be aware your entire comply with the American Indian Trust Indian Affairs (BIA) are used to evaluate comment including your personal Fund Management Reform Act of 1994; compliance with Federal regulations, identifying information, such as your and improve accountability and statutes, and policies in the address, phone number, email address, management of Indian funds held in management of Indian trust programs, or any other personal identifying trust by the Government. and identify names of Tribes or trust information in your comment, may be beneficiaries associated with the made publicly available at any time. CATEGORIES OF INDIVIDUALS COVERED BY THE ownership of trust assets, leases, court While you may request that we SYSTEM: orders, or other trust related withhold your personal identifying Individuals covered by the system transactions and documentation. The information from public review, we include individual Indians and Alaskan data regarding IIM accounts that may be cannot guarantee we will be able to do Natives (or their heirs); Tribes that obtained from the OST Accounting so. compact trust programs, functions, Reconciliation Tool (ART) system, Trust services, and activities under Public Funds Accounting System (TFAS) and SYSTEM NAME AND NUMBER: Law 93–638 Self-Governance Compacts; the BIA Trust Asset and Accounting INTERIOR/OS–02, Individual Indian current and former Federal employees Management system (TAAMS). Records Money (IIM) Trust Funds. and contractors who receive IIM in the system may include IIM account SECURITY CLASSIFICATION: account information or are IIM account numbers, bank routing and account Unclassified. holders, owners of land held in trust or numbers, names, aliases or other names restricted status by the Federal used, mother’s maiden name, child or SYSTEM LOCATION: Government, officials acting in their dependent information, guardianship The system of records is maintained official capacity to administer program information, gender, date of birth, age, by the Office of the Special Trustee for activities, individuals owning date of death, emergency contact American Indians, U.S. Department of purchasable fractional interests in land information, marital status, spouse the Interior, at the following locations: or who may be interested in information, medical information,

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disability information, mailing, home, A. To the Department of Justice (DOJ), purpose for which the records were and email addresses, telephone and cell including Offices of the U.S. Attorneys, compiled. phone numbers, driver’s license, Social or other Federal agency conducting H. To an expert, consultant, grantee, Security numbers (SSNs), truncated litigation or in proceedings before any or contractor (including employees of SSNs, and taxpayer identification court, adjudicative, or administrative the contractor) of DOI that performs numbers, Tribal Enrollment Number, body, when it is relevant or necessary to services requiring access to these Tribal affiliation (membership), other the litigation and one of the following records on DOI’s behalf to carry out the Tribal identification number, blood is a party to the litigation or has an purposes of the system. quantum, and Tribal trust account interest in such litigation: I. To appropriate agencies, entities, codes. (1) DOI or any component of DOI; and persons when: (2) Any other Federal agency (1) DOI suspects or has confirmed that RECORD SOURCE CATEGORIES: appearing before the Office of Hearings there has been a breach of the system of Records in the system are obtained and Appeals; records; from individual Indians and Alaskan (3) Any DOI employee or former (2) DOI has determined that as a result Natives (or their heirs), Indian Tribes, employee acting in his or her official of the suspected or confirmed breach current and former Federal employees capacity; there is a risk of harm to individuals, and contractors who receive IIM (4) Any DOI employee or former DOI (including its information systems, account information or are IIM account employee acting in his or her individual programs, and operations), the Federal holders. Records and financial data in capacity when DOI or DOJ has agreed to Government, or national security; and this system are also obtained from the represent that employee or pay for (3) the disclosure made to such OST ART, TFAS, and other DOI private representation of the employee; agencies, entities, and persons is Bureaus and Offices including BIA, or reasonably necessary to assist in Office of Natural Resources and (5) The United States Government or connection with DOI’s efforts to respond Revenue (ONRR), Bureau of Land any agency thereof, when DOJ to the suspected or confirmed breach or Management (BLM), Office of Hearings determines that DOI is likely to be to prevent, minimize, or remedy such and Appeals (OHA), and the Office of affected by the proceeding. harm. the Secretary (OS). Information may also B. To a congressional office when J. To another Federal agency or be obtained from the Department of requesting information on behalf of, and Federal entity, when DOI determines Justice (DOJ), Department of the at the request of, the individual who is that information from this system of Treasury, and other Federal, state and the subject of the record. records is reasonably necessary to assist local agencies, and Tribes; Courts of C. To any criminal, civil, or regulatory the recipient agency or entity in: competent jurisdiction, including Tribal law enforcement authority (whether (1) responding to a suspected or courts; and, private financial, business Federal, state, territorial, local, tribal or confirmed breach; or institutions, and entities. foreign) when a record, either alone or (2) preventing, minimizing, or This system also obtains information in conjunction with other information, remedying the risk of harm to from members of the public, including indicates a violation or potential individuals, the recipient agency or individuals who make inquiries about violation of law—criminal, civil, or entity (including its information Cobell Settlement payments, regulatory in nature, and the disclosure systems, programs, and operations), the acquaintances of IIM account holders is compatible with the purpose for Federal Government, or national who may know the whereabouts of which the records were compiled. security, resulting from a suspected or otherwise unknown locations of D. To an official of another Federal confirmed breach. beneficiaries, depositors into and agency to provide information needed K. To the Office of Management and claimants against IIM accounts, in the performance of official duties Budget (OMB) during the coordination individuals who lease, contract, or who related to reconciling or reconstructing and clearance process in connection are permit holders on Indian lands and data files or to enable that agency to with legislative affairs as mandated by individuals with whom OST conducts respond to an inquiry by the individual OMB Circular A–19. business. Information may also be to whom the record pertains. L. To the Department of the Treasury, received from private organizations E. To Federal, state, territorial, local, as needed, in the performance of their about individual Indian account holders tribal, or foreign agencies that have official duties to disburse trust funds whose whereabouts are unknown to requested information relevant or and to issue disbursements, Explanation OST and correspondents, beneficiaries, necessary to the hiring, firing or of Payment (EOP) reports, Statements of landowners, and members of the public retention of an employee or contractor, Performance (including Assets), IRS who participate or are interested in land or the issuance of a security clearance, Form 1099s, Osage Headwright Owner’s consolidation or related program license, contract, grant or other benefit, Share of Income, Deductions, etc., and activity. when the disclosure is compatible with BIA invoices for the use or sale of ROUTINE USES OF RECORDS MAINTAINED IN THE the purpose for which the records were Indian trust lands and resources. SYSTEM, INCLUDING CATEGORIES OF USERS AND compiled. M. To agency contractors who have THE PURPOSES OF SUCH USES: F. To representatives of the National been engaged to assist the Government In addition to those disclosures Archives and Records Administration in the performance of a contract, grant, generally permitted under 5 U.S.C. (NARA) to conduct records management cooperative agreement, or other activity 552a(b) of the Privacy Act, all or a inspections under the authority of 44 related to this system or records and portion of the records or information U.S.C. 2904 and 2906. who need to have access to the records maintained in this system may be G. To state, territorial and local in order to perform the activity. disclosed to authorized entities outside governments and tribal organizations to N. To Indian Tribes entering into a DOI for purposes determined to be provide information needed in response contract or compacts of the trust funds relevant and necessary as a routine use to court order and/or discovery management functions under the Indian pursuant to 5 U.S.C. 552a(b)(3) as purposes related to litigation, when the Self-Determination and Education follows: disclosure is compatible with the Assistance Act, as amended.

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O. To any of the following entities or unwarranted invasion of personal after cut off, and then retired to the individuals, when the entity or privacy. American Indian Records Repository individual makes a written request for V. To the Executive Office of the (AIRR), Federal Records Center, Lenexa, information of owners of any interest in President in response to an inquiry from Kansas. Record retention periods vary trust or restricted lands, location of the that office made at the request of the based on the type of record under the parcel, and the percentage of undivided subject of a record or a third party on appropriate 6100 and 9000 records interest owned by each individual. that person’s behalf, or for a purpose series. Subsequent legal transfer of the (1) To other owners of interests in compatible with the reason for which records to the National Archives of the trust or restricted lands within the same the records are collected or maintained. United States will be in accordance with Indian Reservation. W. To the Department of the Treasury the signed Standard Form 258, (2) To Tribes that exercise jurisdiction to recover debts owed to the United Agreement to Transfer Records to the over the land where the parcel is located States. National Archives of the United States. or any person who is eligible for Historical Trust Accounting records are DISCLOSURE TO CONSUMER REPORTING membership in a Tribe. cut off at fiscal year-end, maintained in AGENCIES: (3) To any person that is leasing, the office of records for a maximum of using or consolidating, or is applying to Disclosure pursuant to 5 U.S.C. 5 years after cut off, and then retired to lease, use or consolidate trust or 552a(b)(12). Disclosures may be made the AIRR, Federal Records Center, restricted land or the interest in trust or from this system to consumer reporting Lenexa, Kansas. Subsequent legal restricted lands. agencies as defined in the Fair Credit transfer of the records to the National P. To Indian Tribes entering into a Reporting Act (15 U.S.C. 1681a(f)) or the Archives of the United States will be as contract or compacts of real estate or Federal Claims Act of 1966 (31 U.S.C. jointly agreed to between the U.S. title functions under the Indian Self- 3701(a)(3)). Department of the Interior and NARA. Determination and Education POLICIES AND PRACTICES FOR STORAGE OF Temporary records are maintained and Assistance Act, as amended. RECORDS: disposed of in accordance with the Q. To Indian Tribes (including Records are maintained in any General Records Schedule or the employees) who medium including paper, electronic, Departmental Records Schedule (DRS) (1) operate, or are eligible to operate, microfilm, microfiche, imaged, and for the appropriate record type land consolidation activities on behalf computer printout form. Original input (including data backup tapes or copies). of DOI, documents are stored in standard office (2) agree to non-disclosure, and ADMINISTRATIVE, TECHNICAL, AND PHYSICAL filing equipment and/or imaged SAFEGUARDS: (3) submit a request in writing, upon documents on magnetic media which The records contained in this system a determination by DOI that such prepare and provide input documents activities shall occur on the Tribe’s are safeguarded in accordance with 43 and information for data processing. CFR 2.226 and other applicable security Reservation within six months or less Paper records are maintained in file and when the information relates to and privacy rules and policies. During folders stored within locking file normal hours of operation, paper owners of fractionated land. Information cabinets or locked areas in secured disclosed may include, but is not records are maintained in locked file facilities with controlled access. cabinets in secure locations under the limited to, the following: Electronic records are stored in (a) Contact information (telephone control of authorized personnel. computers, removable drives, storage number, email address); Computer servers on which electronic devices, electronic databases, and other (b) Relevant personal characteristics records are stored are located in secured electronic media under the control of of the owner (age, Tribal membership, DOI controlled facilities with physical, OST. living/deceased); technical and administrative levels of (c) Type of ownership, i.e., type of POLICIES AND PRACTICES FOR RETRIEVAL OF security to prevent unauthorized access interest, if interest is purchasable; and RECORDS: to the DOI network and information (d) Transaction status, i.e., has an Records are retrieved by individual assets. Access granted to authorized offer been sent, accepted or rejected, is names; SSNs; IIM or Tribal trust funds personnel is password-protected, and the owner a willing seller. account numbers; Tribe, Tribal each person granted access to the R. To the lineal descent, heir, or enrollment or census numbers; Tribal system must be individually authorized devisee of a deceased individual codes, electronic ticket numbers; to use the system. A Privacy Act covered by the system or to any other contact names; call numbers or incident Warning Notice appears on computer person entitled to the deceased’s trust numbers; Tax Identification Number monitor screens when records assets. (TIN); IIM or Tribal trust fund account containing information on individuals S. To IIM account owners, their heirs, number and identifiers may also be are first displayed. Data exchanged guardians, or agents. linked to an individual appraisal, between the servers and the system is T. To members of the public, the parcel, or encumbrance on ownership. encrypted. Backup tapes are encrypted names of IIM account holders whose and stored in a locked and controlled whereabouts are unknown and OST is POLICIES AND PRACTICES FOR RETENTION AND room in a secure, off-site location. seeking a current address. DISPOSAL OF RECORDS: Computerized records systems follow U. To the news media and the public, Records in this system are covered by the National Institute of Standards and with the approval of the Public Affairs the Indian Affairs Records Schedule Technology standards as developed to Officer in consultation with counsel and (IARS) records series 6100 and 9000 comply with the Privacy Act of 1974, 5 the Senior Agency Official for Privacy, approved on June 28, 2006 by the U.S.C. 552a, Paperwork Reduction Act where there exists a legitimate public National Archives and Records of 1995, 44 U.S.C. 3501–3521; Federal interest in the disclosure of the Administration (NARA) Job No. N1– Information Security Modernization Act information, except to the extent it is 075–04–7 and Job. No. N1–075–06–8. of 2014, 44 U.S.C. 3551–3558; and the determined that release of the specific The Indian Fiduciary Financial Trust Federal Information Processing information in the context of a records are cut off at the end of the fiscal Standards 199; Standards for Security particular case would constitute an year, maintained in the office two years Categorization of Federal Information

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and Information Systems. Security money that you are willing to pay for DEPARTMENT OF THE INTERIOR controls include user identification, duplication. passwords, database permissions, Office of the Secretary CONTESTING RECORD PROCEDURES: encryption, firewalls, audit logs, and [DOI–2018–0014; 19XD0120AF DT23100000 network system security monitoring, An individual requesting corrections DSX1B0000 54AB00.241A] and software controls. or the removal of material from his or Access to records in the system is her records should send a signed, Privacy Act of 1974; System of limited to authorized personnel who written request to the System Manager Records have a need to know to access the identified above. A request for records in the performance of their corrections or removal must meet the AGENCY: Office of the Special Trustee for official duties. Electronic data is requirements of 43 CFR 2.246. Provide American Indians, Interior. protected through identification, the following information with your ACTION: Rescindment of a system of passwords, database permission and request: records notice. (a) Proof of your identity; software controls. Such security SUMMARY: The Department of the (b) List of all of the names by which measures establish different access Interior is issuing a public notice of its you have been known, such as maiden levels for different types of users intent to rescind the Office of the name or alias(es); associated with pre-defined groups and/ Special Trustee for American Indians or bureaus. Each user’s access is (c) Social Security number; Privacy Act system of records, ‘‘OST restricted to only the functions and data (d) Mailing address; Parking Assignment Records, OS–08’’ necessary to perform that person’s job (e) Tribe, IIM account number, Tribal from its existing inventory. responsibilities. Access can be restricted enrollment, or census number; DATES: August 23, 2019. to specific functions (i.e., create, update, (f) BIA home agency; delete, view, assign permissions) and is (g) Time period(s) during which the ADDRESSES: You may send comments, restricted utilizing role-based access. records may have been created or identified by docket number [DOI– Authorized users are required to follow maintained, to the extent known by you; 2018–0014], by any of the following established internal security protocols (h) Specific description or methods: • Federal eRulemaking Portal: http:// and must complete all security, privacy, identification of the record(s) you are www.regulations.gov. Follow the and records management training and contesting and the reason(s) why you instructions for sending comments. sign the DOI Rules of Behavior. Contract believe the record(s) are not accurate, • Email: [email protected]. employees with access to the system are relevant, timely, or complete; and Include docket number [DOI–2018– monitored by the Contracting Officer’s (i) Copy of documents or evidence in 0014] in the subject line of the message. Representative and agency Security support of (h) above. • Mail: Teri Barnett, Departmental Manager. A Privacy Impact Assessment NOTIFICATION PROCEDURES: Privacy Officer, U.S. Department of the was conducted to ensure that Privacy Interior, 1849 C Street NW, Room 7112, Act safeguard requirements are met and An individual requesting notification of the existence of records on himself or Washington, DC 20240. appropriate privacy controls and • Hand Delivery/Courier: Teri herself should send a signed, written safeguards are in place. Barnett, Departmental Privacy Officer, inquiry to the System Manager U.S. Department of the Interior, 1849 C RECORD ACCESS PROCEDURES: identified above. The request envelope Street NW, Room 7112, Washington, DC An individual requesting records on and letter should both be clearly marked himself or herself should send a signed, 20240. ‘‘PRIVACY ACT INQUIRY.’’ A request Instructions: All submissions received written request to the System Manager for notification must meet the identified above. The request should must include the agency name and requirements of 43 CFR 2.235. Provide docket number. All comments received describe the records sought as the following information with your specifically as possible. The request will be posted without change to http:// request: www.regulations.gov, including any envelope and letter should both be (a) Proof of your identity; clearly marked ‘‘PRIVACY ACT personal information provided. (b) List of all of the names by which Docket: For access to the docket to REQUEST FOR ACCESS.’’ A request for you have been known, such as maiden read background documents or access must meet the requirements of 43 name or alias(es); comments received, go to http:// CFR 2.238. Provide the following (c) Social Security number; www.regulations.gov. information with your request: (d) Mailing address; You should be aware that your entire (a) Proof of your identity; (e) Tribe, IIM account number, Tribal (b) List of all of the names by which comment including your personal enrollment, or census number; identifying information, such as your you have been known, such as maiden (f) BIA home agency; and name or alias(es); address, phone number, email address, (g) Time period(s) during which the or any other personal identifying (c) Social Security number; records may have been created or (d) Mailing address; information in your comment, may be maintained, to the extent known by you. (e) Tribe, IIM account number, Tribal made publicly available at any time. enrollment, or census number; EXEMPTIONS PROMULGATED FOR THE SYSTEM: While you may request to withhold your personal identifying information from (f) BIA home agency; None. (g) Time period(s) during which the public review, we cannot guarantee we records may have been created or HISTORY: will be able to do so. maintained, to the extent known by you; 80 FR 1043 (January 8, 2015). FOR FURTHER INFORMATION CONTACT: Teri and Barnett, Departmental Privacy Officer, (h) Description or identification of the Teri Barnett, U.S. Department of the Interior, 1849 C records you are requesting (including Departmental Privacy Officer, Department of Street NW, Room 7112, Washington, DC whether you are asking for a copy of all the Interior. 20240, email at DOI_Privacy@ of your records or only a specific part [FR Doc. 2019–18184 Filed 8–22–19; 8:45 am] ios.doi.gov or by telephone at (202) 208– of them) and the maximum amount of BILLING CODE 4334–63–P 1605.

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SUPPLEMENTARY INFORMATION: The Office ACTION: Notice of availability. FOR FURTHER INFORMATION CONTACT: of the Special Trustee for American Harry Barber, Monument Manager, Indians (OST) no longer uses the OS–08, SUMMARY: In accordance with the telephone (435) 644–1200; address 669 OST Parking Assignment Records, National Environmental Policy Act of S Hwy. 89A, Kanab, UT 84741; email system of records to collect and 1969, as amended, and the Federal Land [email protected]. maintain parking permits for employees Policy and Management Act of 1976, as Persons who use a telecommunications and contractors. In September 2013, amended, the Bureau of Land device for the deaf (TDD) may call the OST opened parking to all OST Management (BLM) Grand Staircase- Federal Relay Service (FRS) at 1–800– employees, contractors, and visitors and Escalante National Monument (GSENM) 877–8339 to contact the above discontinued the use of parking permits and Kanab Field Office (KFO) have individual during normal business to control parking access. The records in prepared the Proposed Resource hours. The FRS is available 24 hours a this system were previously maintained Management Plans (RMPs) and Final day, 7 days a week, to leave a message in accordance with General Records Environmental Impact Statement (EIS) or question for the above individual. Schedule (GRS), GRS 11/4a, which was for the GSENM Grand Staircase, You will receive a reply during normal approved by the National Archives and Kaiparowits, and Escalante Canyons business hours. Units, and Federal lands excluded from Records Administration. The retention SUPPLEMENTARY INFORMATION: On the Monument by Proclamation 9682 period was six months, and all parking December 4, 2017, President Donald (Kanab-Escalante Planning Area (KEPA), permit records maintained in the system Trump signed Presidential Proclamation and by this notice is announcing its were disposed of in accordance with 9682 modifying the boundaries of the availability and the opening of a protest GRS 11/4a. GSENM to exclude from designation period concerning the Proposed RMPs. Pursuant to the provisions of the and reservation approximately 861,974 In accordance with the John D. Dingell, Privacy Act of 1974, as amended, the acres of land. Lands that remain part of Jr. Conservation, Management, and OST is removing the OS–08, OST the GSENM are included in three units, Recreation Act of 2019, this notice also Parking Assignment Records, from its known as the Grand Staircase, announces the opening of a 60-day system of records inventory. Rescinding Kaiparowits, and Escalante Canyons public comment period regarding the the OS–08, OST Parking Assignment Units and are reserved for the care and proposed closure of recreational target Records, system of records notice will management of the objects of historic shooting within at least 0.25 miles of have no adverse impacts on individuals and scientific interest described in residences, campgrounds, and as the records previously maintained in Proclamation 6920, as modified by developed recreation facilities in the system were disposed of in Proclamation 9682. Lands that are GSENM and KEPA. accordance with an approved records excluded from the Monument retention schedule. This rescindment DATES: The BLM planning regulations boundaries are now referred to as the will also promote the overall state that any person who meets the Kanab-Escalante Planning Area (KEPA) streamlining and management of conditions as described in the and are managed in accordance with the Department of the Interior Privacy Act regulations may protest the BLM’s BLM’s multiple-use mandate. systems of records. Proposed RMPs and Final EIS. A person The planning area is located in Kane who meets the conditions and files a SYSTEM NAME AND NUMBER: and Garfield Counties, Utah, and protest must file the protest within 30 encompasses approximately 1.87 OS–08, OST Parking Assignment days of the date that the Environmental Records. million acres of public land. For the Protection Agency publishes its Notice GSENM Grand Staircase, Kaiparowits, HISTORY: of Availability in the Federal Register. and Escalante Canyons Units, this 73 FR 77823 (December 19, 2008). To ensure that comments on the planning effort is needed to identify proposed target shooting closure will be goals, objectives, and management Teri Barnett, considered, the BLM must receive actions necessary for the proper care Departmental Privacy Officer, Department of written comments by October 22, 2019. and management of the objects and the Interior. ADDRESSES: The Proposed RMPs and values identified in Proclamations 6920, [FR Doc. 2019–18185 Filed 8–22–19; 8:45 am] Final EIS is available on the BLM as modified by Proclamation 9682. For BILLING CODE 4334–63–P ePlanning project website at https:// lands in the KEPA, this planning effort go.usa.gov/xVCGJ. Click the is needed to identify goals, objectives, ‘‘Documents & Reports’’ link on the left and management actions necessary to DEPARTMENT OF THE INTERIOR side of the screen to find the electronic ensure that public lands and their Bureau of Land Management versions of these materials. Hard copies various resource values are utilized in of the Proposed RMPs and Final EIS are the combination that will best meet the [19X 1109AF LLUT930000 available for public inspection at the present and future needs of the Ll6100000.DQ0000.LXSSJ0640000] Kanab Field Office. American people. Instructions for filing a protest with Notice of Availability of the Grand The entire planning area is currently the Director of the BLM regarding the Staircase-Escalante National managed by the BLM and under the Proposed RMPs may be found online at Monument-Grand Staircase, Grand Staircase-Escalante National https://www.blm.gov/filing-a-plan- Kaiparowits, and Escalante Canyon Monument Management Plan (BLM protest and at 43 CFR 1610.5–2. Units and Federal Lands Previously 1999), as amended. This planning effort Included in the Monument That are You may submit comments on the would replace the existing Monument Excluded From the Boundaries proposed target shooting closure using Management Plan with four new RMPs. either of the following methods: The BLM reviewed public-scoping Proposed Resource Management _ _ _ Plans and Final Environmental Impact Email: BLM UT CCD monuments@ comments to identify planning issues Statement blm.gov. that directed the formulation of Mail: BLM, Kanab Field Office, 669 alternatives and framed the scope of AGENCY: Bureau of Land Management, South Highway 89A, Kanab, UT 84741, analysis in the Draft RMPs/EIS. Issues Interior. Attn: Harry Barber. identified include management of

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recreation and access; paleontological In the Proposed RMPs, the BLM review period on the Final and cultural resources; livestock proposes that recreational target Supplemental EIS. The Mount Hope grazing; mineral resources; and wildlife, shooting shall not be allowed on certain Project (Project) is owned by Eureka water, vegetation, and soil resources. lands managed by the BLM in both Moly, LLC (EML) and is located in This planning effort also considers GSENM and KEPA. As proposed, target central Nevada, approximately 23 miles management of lands with wilderness shooting would generally be allowed, northwest of Eureka, Nevada. The BLM characteristics and designation of Areas but would be prohibited within at least has prepared this Final Supplemental of Critical Environmental Concern. 0.25 miles of residences, campgrounds, EIS as a response to the United States The formal public scoping process for and developed recreation facilities. The Court of Appeals for the Ninth Circuit’s the RMPs and EIS began on January 16, proposed closure would provide for remand decision for further action on 2018, with publication of a Notice of public safety near residences, issues identified in its December 28, Intent in the Federal Register (83 FR campgrounds and developed recreation 2016 decision. 2179) and ended on April 11, 2018. The facilities. The proposed closure would DATES: The review period will end BLM held public scoping meetings in also enhance the safety of the public following a 30 day review period Kanab and Escalante, Utah, in March visiting campgrounds and developed beginning on the date the 2018. The Notice of Availability for the recreation facilities in GSENM and Environmental Protection Agency Draft RMPs/EIS was published on KEPA, which would improve their publishes its Notice of Availability in August 17, 2018 (83 FR 41108), experience. the Federal Register. In accordance with the John D. followed by a Notice of Error, on August ADDRESSES: For questions related to the Dingell, Jr. Conservation, Management, 31, 2019 (83 FR 44659), that extended Mount Hope Project: the public comment period on the Draft and Recreation Act of 2019, the BLM is • Email: blm_nv_bmdo_eurekamoly_ RMPs/EIS. The BLM accepted public announcing the opening of a 60-day [email protected]. comments on the range of alternatives, public comment period on the proposed • target shooting closure. As such, the Fax: 775–635–4034. effects analysis and Draft RMPs for 105 • days, ending on November 30, 2018. BLM is only accepting comments on the Mail: 50 Bastian Road, Battle During the public comment period, proposed target shooting closure. All Mountain, NV 89820. public meetings were held in Kanab and comments must be received by the date Documents pertinent to this proposal Escalante, Utah. set forth in the DATES section above and may be downloaded from https:// go.usa.gov/xUhRK or examined at the The Draft RMPs/EIS evaluated four must be submitted using one of the Mount Lewis Field Office. alternatives in detail. Alternative A is methods listed in the ADDRESSES section the No Action alternative, which is a above. FOR FURTHER INFORMATION CONTACT: continuation of existing decisions in the All protests must be in writing and Kevin Hurrell—Project Manager, Monument Management Plan. submitted, as set forth in the DATES and telephone 775–635–4000; address 50 Alternative B generally focuses on ADDRESSES sections above. Bastian Road, Battle Mountain, Nevada protection of resources (e.g., wildlife, Authority: 40 CFR 1506.6 40 CFR 1506.10 89820. Contact Kevin Hurrell to have vegetation, cultural, etc.) while 43 CFR 1610.2 and 36 CFR 219.59. your name added to our mailing list. providing for targeted resource use (e.g., Persons who use a telecommunications Edwin L. Roberson, rights-of-way, travel, mineral device for the deaf (TDD) may call the development). Alternative C generally State Director. Federal Relay Service (FRS) at 1–800– represents a balance of resource [FR Doc. 2019–18243 Filed 8–22–19; 8:45 am] 877–8339 to contact the above protection and resource use. Alternative BILLING CODE 4310–DQ–P individual during normal business D generally focuses on maximizing hours. The FRS is available 24 hours a resource use (e.g., rights-of-way, day, 7 days a week, to leave a message minerals development, livestock DEPARTMENT OF THE INTERIOR or question with the above individual. You will receive a reply during normal grazing) while still providing for Bureau of Land Management resource protection as required by business hours. applicable regulations, laws, policies, [LLNVB0100.L19900000.EX0000.211B.19X SUPPLEMENTARY INFORMATION: The plans, and guidance, including MO#4500136314] Bureau of Land Management Mount protection of Monument objects within Lewis Field Office authorized the Notice of Availability of the Final the GSENM Units. Comments on the Mount Hope Project Record of Decision, Supplemental Environmental Impact Draft RMPs/EIS received from the Plan of Operations Approval, and Statement for the Mount Hope Project, public, the Utah Resource Advisory Approval of Issuance of Right-of-Way Eureka County, Nevada Council, cooperating agencies and Grants on November 16, 2012. The tribes, and internal BLM review were AGENCY: Bureau of Land Management, Project consists of a proposed considered and incorporated as Interior. molybdenum mine including a power appropriate into the Proposed RMPs/ ACTION: Notice. transmission line, a water well field, Final EIS. Public comments resulted in and all associated facilities to be located the addition of clarifying text, but did SUMMARY: In compliance with the on public land administered by the BLM not significantly change the range of National Environmental Policy Act of Mount Lewis Field Office and on alternatives considered. Alternative E 1969, as amended (NEPA), and the private land controlled by EML. The was developed in response to comments Federal Land Policy and Management Project will utilize an open pit mining received on the Draft RMPs/EIS and Act of 1976, as amended (FLPMA), the method and will process the mined ore includes elements of Alternatives A, B, Bureau of Land Management (BLM) using a flotation and roasting process. C, and D. The BLM has identified Mount Lewis Field Office, Battle When completed, a total of 8,618 acres Alternative E as the agency’s Proposed Mountain, Nevada, has prepared a Final of disturbance would occur within the RMPs. Identification of this alternative, Supplemental Environmental Impact 23,065-acre Project area. Of the 8,618 however, does not represent final Statement (EIS) and by this notice is acres, 8,359 is public land and 259 is agency direction. announcing the beginning of the 30-day private land.

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The BLM has prepared this Final ADDRESSES: Send your comments on to withhold your personally identifiable Supplemental EIS as a response to the this ICR by mail to the BOEM information from public review, we United States Court of Appeals for the Information Collection Clearance cannot guarantee that we will be able to Ninth Circuit’s remand decision for Officer, Anna Atkinson, Bureau of do so. further action on issues identified in its Ocean Energy Management, 45600 BOEM protects proprietary December 28, 2016 decision. The Final Woodland Road, Sterling, Virginia information in accordance with the Supplemental EIS includes the 20166; or by email to anna.atkinson@ Freedom of Information Act (5 U.S.C. following: (1) An explanation of the boem.gov. Please reference OMB Control 552) and the Department of the usage of baseline values of zero for Number 1010–0106 in the subject line of Interior’s FOIA regulations (43 CFR part several air pollutants; (2) a quantitative your comments. 2), and under applicable sections of 30 cumulative air quality impacts analysis; FOR FURTHER INFORMATION CONTACT: To CFR parts 550 and 552 promulgated and (3) a clarification of the status of request additional information about pursuant to Outer Continental Shelf certain springs and water holes under this ICR, contact Anna Atkinson by Lands Act (OCSLA) at 43 U.S.C. 1352(c). Executive Order Public Water Reserve email, or by telephone at 703–787–1025. Abstract: This ICR concerns the paperwork requirements in the No. 107. SUPPLEMENTARY INFORMATION: In regulations in 30 CFR part 553, Oil Spill The BLM has consulted, and accordance with the Paperwork Financial Responsibility for Offshore continues to consult, with Native Reduction Act of 1995, BOEM provides Facilities, including any supplementary American tribes on a government-to- the general public and other Federal notices to leases and operators that government basis in accordance with agencies with an opportunity to provide clarification, description, or Executive Order 13175 and other comment on new, proposed, revised, explanation of these regulations; and policies. Federal, State, and local and continuing collections of forms BOEM–1016 through 1023, and agencies, along with tribes and other information. This helps BOEM assess stakeholders that may be interested in or BOEM–1025. the impact of its information collection BOEM uses the information collected affected by the Project are invited to requirements and minimizes the participate in the comment process. under 30 CFR part 553 to verify public’s reporting burden. It also helps compliance with section 1016 of the Oil Before including your address, phone the public understand our information number, email address, or other Pollution Act, as amended, 33 U.S.C. collection requirements and provide the 2701 et seq. This information is personal identifying information in your requested data in the desired format. comment, you should be aware that necessary to confirm that applicants can BOEM is soliciting comments on the pay for cleanup and damages resulting your entire comment—including your proposed ICR described below. We are personal identifying information—may from oil spills and other hydrocarbon especially interested in public discharges that originate from covered be made publicly available at any time. comments addressing the following While you can ask us in your comment offshore facilities. issues: (1) Is the collection necessary to BOEM uses forms to collect to withhold your personal identifying the proper functions of BOEM; (2) what information from public review, we information to ensure proper and can BOEM do to ensure that this efficient administration of Oil Spill cannot guarantee that we will be able to information be processed and used in a do so. Financial Responsibility. BOEM collects timely manner; (3) is the burden information to: Authority: 40 CFR 1501.7. estimate accurate; (4) how might BOEM • Provide a standard method for Jon D. Sherve, enhance the quality, utility, and clarity establishing eligibility for oil spill of the information to be collected; and Field Manager, Mount Lewis Field Office. financial responsibility for offshore (5) how might BOEM minimize the [FR Doc. 2019–18242 Filed 8–22–19; 8:45 am] facilities; burden of this collection on the • Identify and maintain a record of BILLING CODE 4310–HC–P respondents, including minimizing the those offshore facilities that have a burden through the use of information potential oil spill liability; technology? • DEPARTMENT OF THE INTERIOR Establish and maintain a Comments submitted in response to continuous record, over the liability Bureau of Ocean Energy Management this notice are a matter of public record. term specified in Title I of the Oil BOEM will include or summarize each Pollution Act of 1990, of financial [OMB Control Number 1010–0106; Docket comment in our request to the Office of evidence and instruments established to ID: BOEM–2017–0016] Management and Budget (OMB) for pay claims for oil spill cleanup and approval of this ICR. You should be Agency Information Collection damages resulting from operations aware that your entire comment— Activities; Oil Spill Financial conducted on covered offshore facilities including your address, phone number, Responsibility for Offshore Facilities and the transportation of oil from email address, or other personal covered offshore facilities and wells; AGENCY: Bureau of Ocean Energy identifying information—may be made • Establish and maintain a Management, Interior. publicly available at any time. In order continuous record of responsible ACTION: Notice of information collection; for BOEM to withhold from disclosure parties, as defined in Title I of the Oil request for comment. your personally identifiable Pollution Act of 1990, and their agents information, you must identify any or Authorized Representatives for oil SUMMARY: In accordance with the information contained in the submittal spill financial responsibility for covered Paperwork Reduction Act of 1995, the of your comments that, if released, offshore facilities; and Bureau of Ocean Energy Management would constitute a clearly unwarranted • Establish and maintain a (BOEM) is proposing to renew an invasion of your personal privacy. You continuous record, over the liability information collection request (ICR) must also briefly describe any possible term specified in Title I of the Oil with revisions. harmful consequences of the disclosure Pollution Act of 1990, of persons to DATES: Interested persons are invited to of your information, such as contact and U.S. Agents for Service of submit comments on or before October embarrassment, injury, or other harm. Process for claims associated with oil 22, 2019. While you can ask us in your comment spills from covered offshore facilities.

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Title of Collection: 30 CFR 553, Oil Type of Review: Renewal with Estimated Reporting and Spill Financial Responsibility for revisions of a currently approved Recordkeeping Hour Burden: The Offshore Facilities. information collection. current annual burden hours for this OMB Control Number: 1010–0106. Respondents/Affected Public: Holders collection are 22,132 hours. BOEM Form Number: of leases, permits, right-of-way grants, proposes to increase the annual burden • BOEM–1016, Designated Applicant and right-of-use and easement grants in hours to 22,133 hours to account for a Information Collection; the OCS and in State coastal waters who requirement under 30 CFR 553.62 not • BOEM–1017, Appointment of are responsible parties and/or who will previously counted. BOEM, under 30 Designated Applicant; appoint designated applicants. Other CFR 553.62, requires the designated • BOEM–1018; Self-Insurance respondents may be the designated applicant to notify their guarantors and Information; applicants’ insurance agents and responsible parties within 15 calendar • BOEM–1019, Insurance Certificate; brokers, bonding companies, and days of receiving a claim for removal guarantors. Some respondents may also • BOEM–1020, Surety Bond; costs and damages. BOEM plans to add • be claimants. 1 annual burden hour under 30 CFR BOEM–1021, Covered Offshore Total Estimated Number of Annual Facility; 553.62 to account for the burden. The • Responses: 1,823 responses. burden was not previously counted in BOEM–1022, Covered Offshore Total Estimated Number of Annual Facility Changes; this OMB control number, because it Burden Hours: 22,133 hours. was thought to overlap with U.S. Coast • BOEM–1023, Financial Guarantee; Respondent’s Obligation: Mandatory. and Frequency of Collection: On occasion Guard’s requirements. • BOEM–1025, Independent or annual. The following table details the Designated Applicant Information Total Estimated Annual Non-Hour individual components and respective Certification. Burden Cost: None. hour burden estimates of this ICR.

BURDEN BREAKDOWN

Average Citation 30 CFR part number of Annual 553 Reporting requirement * Hour burden annual burden hours reponses

Various sections ...... The burdens for all references to submitting evidence of OSFR, as well as required or supporting infor- 0 mation, are covered with the forms below

Applicability and Amount of OSFR

11(a)(1); 40; 41 ...... Form BOEM–1016—Designated Applicant Information Certification 1 200 200 11(a)(1); 40; 41 ...... Form BOEM–1017—Appointment of Designated Applicant ...... 9 600 5,400 11(a)(1); (2) ...... Form BOEM–1025—Independent Designated Applicant Information 1 200 200 Certification. 12, 45 ...... Request for determination of OSFR applicability. Provide required 2 5 10 and supporting information. 15 ...... Notify BOEM of change in ability to comply ...... 1 1 1 15(f) ...... Provide claimant written explanation of denial ...... 1 15 15

Subtotal ...... 1,021 5,826

Methods for Demonstrating OSFR

21–28; 40 ...... Form BOEM–1018—Self-Insurance Information, including renewals 1 50 50 30; 40; 41; 43 ...... Form BOEM–1023—Financial Guarantee ...... 1.5 25 38 29; 40; 41; 43 ...... Form BOEM–1019—Insurance Certificate ...... 120 120 14,400 31; 40; 41; 43 ...... Form BOEM–1020—Surety Bond ...... 24 4 96 32 ...... Proposal and supporting information for alternative method to evi- 120 1 120 dence OSFR (anticipate no proposals, but regulations provide the opportunity).

Subtotal ...... 200 14,704

Requirements for Submitting OSFR Information

14; 40; 41; 43 ...... Form BOEM–1021—Covered Offshore Facilities ...... 6 200 1,200 40–42 ...... Form BOEM–1022—Covered Offshore Facility Changes ...... 1 400 400

Subtotal ...... 600 1,600

Claims for Oil-Spill Removal Costs and Damages

Subpart F ...... Claims: BOEM is not involved in the claims process. Assessment of burden for claims against the Oil 0 Spill Liability Trust Fund (33 CFR parts 135, 136, 137) falls under the responsibility of the U.S. Coast Guard

60(d) ...... Claimant request for BOEM assistance to determine whether a 2 1 2 guarantor may be liable for a claim.

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BURDEN BREAKDOWN—Continued

Average Citation 30 CFR part number of Annual 553 Reporting requirement * Hour burden annual burden hours reponses

62 ...... Within 15 calendar days of claim, designated applicant must notify 1 1 1 the guarantor and responsible parties of the claim.

Subtotal ...... 2 3

Total Burden ...... 1,823 22,133 * In the future, BOEM may require specified electronic filing of financial/bonding submissions.

An agency may not conduct or information on this matter by contacting and tube from Mexico.1 A record of the sponsor, and a person is not required to the Commission’s TDD terminal on 202– Commissioners’ votes, the respond to, a collection of information 205–1810. Persons with mobility Commission’s statement on adequacy, unless it displays a currently valid OMB impairments who will need special and any individual Commissioner’s control number. assistance in gaining access to the statements will be available from the The authority for this action is the Commission should contact the Office Office of the Secretary and at the Paperwork Reduction Act of 1995 (44 of the Secretary at 202–205–2000. Commission’s website. U.S.C. 3501 et seq.). General information concerning the Authority: These reviews are being Deanna Meyer-Pietruszka, Commission may also be obtained by conducted under authority of title VII of the accessing its internet server (https:// Tariff Act of 1930; this notice is published Chief, Office of Policy, Regulation, and pursuant to section 207.62 of the Analysis. www.usitc.gov). The public record for Commission’s rules. [FR Doc. 2019–18213 Filed 8–22–19; 8:45 am] these reviews may be viewed on the By order of the Commission. BILLING CODE 4310–MR–P Commission’s electronic docket (EDIS) at https://edis.usitc.gov. For further Issued: August 19, 2019. information concerning the conduct of Lisa Barton, INTERNATIONAL TRADE these reviews and rules of general Secretary to the Commission. COMMISSION application, consult the Commission’s [FR Doc. 2019–18171 Filed 8–22–19; 8:45 am] BILLING CODE 7020–02–P [Investigation Nos. 701–TA–449 and 731– Rules of Practice and Procedure, part TA–1118–1121 (Second Review)] 201, subparts A through E (19 CFR part 201), and part 207, subparts A, D, E, and INTERNATIONAL TRADE Light-Walled Rectangular Pipe and F (19 CFR part 207). COMMISSION Tube From China, Korea, Mexico, and Turkey; Notice of Commission SUPPLEMENTARY INFORMATION: On August [Investigation No. 337–TA–1093] Determinations to Conduct Full Five- 5, 2019, the Commission determined Year Reviews that it should proceed to full reviews in Certain Mobile Electronic Devices and the subject five-year reviews pursuant to Radio Frequency and Processing AGENCY: United States International section 751(c) of the Tariff Act of 1930 Components Thereof (II); Termination Trade Commission. (19 U.S.C. 1675(c)). The Commission of Investigation ACTION: Notice. found that the group responses to its AGENCY: U.S. International Trade notice of institution (84 FR 18577) from SUMMARY: The Commission hereby gives Commission. both the domestic interested parties and notice that it will proceed with full ACTION: Notice. reviews pursuant to the Tariff Act of the respondent interested parties from 1930 to determine whether revocation of Mexico were adequate. The Commission SUMMARY: Notice is hereby given that the countervailing duty order on light- determined to conduct a full review of the U.S. International Trade walled rectangular pipe and tube (‘‘LWR the antidumping order on LWR pipe Commission has determined to pipe and tube’’) from China and and tube from Mexico. The Commission terminate the above-captioned revocation of the antidumping duty did not receive a response to the notice investigation in its entirety based upon orders on LWR pipe and tube from of institution from any respondent settlement. The investigation is China, Korea, Mexico, and Turkey interested parties concerning the orders terminated. would be likely to lead to continuation on subject imports from China, Korea, or FOR FURTHER INFORMATION CONTACT: or recurrence of material injury within Turkey in these reviews. Consequently, Sidney A. Rosenzweig, Office of the a reasonably foreseeable time. A the Commission determined that the General Counsel, U.S. International schedule for the reviews will be respondent interested party group Trade Commission, 500 E Street SW, established and announced at a later responses from each of these subject Washington, DC 20436, telephone (202) date. countries were inadequate. The 708–2532. Copies of non-confidential documents filed in connection with this DATES: August 5, 2019. Commission, however, determined to conduct full reviews of the orders on investigation are or will be available for FOR FURTHER INFORMATION CONTACT: inspection during official business Andres Andrade (202–205–2078), Office LWR pipe and tube from China, Korea, and Turkey in order to promote hours (8:45 a.m. to 5:15 p.m.) in the of Investigations, U.S. International Office of the Secretary, U.S. Trade Commission, 500 E Street SW, administrative efficiency in light of the Commission’s determination to conduct Washington, DC 20436. Hearing- 1 Commissioner Meredith M. Broadbent did not impaired persons can obtain a full review of the order on LWR pipe participate in these determinations.

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International Trade Commission, 500 E Commission issued a notice granting Issued: August 20, 2019. Street SW, Washington, DC 20436, that motion. Lisa Barton, telephone (202) 205–2000. General The Commission’s April 19, 2019 Secretary to the Commission. information concerning the Commission notice requested that the private parties [FR Doc. 2019–18189 Filed 8–22–19; 8:45 am] may also be obtained by accessing its file a motion to terminate by April 26, BILLING CODE 7020–02–P internet server at https://www.usitc.gov. 2019, and Qualcomm and Apple The public record for this investigation complied. The IA concluded that the may be viewed on the Commission’s INTERNATIONAL TRADE motion did not comply with electronic docket (EDIS) at https:// COMMISSION Commission rules, including edis.usitc.gov. Hearing-impaired Commission Rules 201.6 and 210.21(b), persons are advised that information on Notice of Receipt of Complaint; this matter can be obtained by 19 CFR 201.6, 210.21(b), because it Solicitation of Comments Relating to contacting the Commission TDD omitted necessary material and the Public Interest terminal on (202) 205–1810. overredacted material that is not confidential business information. AGENCY: U.S. International Trade SUPPLEMENTARY INFORMATION: The Qualcomm, Apple, and the IA moved to Commission. Commission instituted this investigation extend the deadline for IA’s response to ACTION: Notice. on January 18, 2018, based on a the motion to terminate to provide complaint filed by Qualcomm SUMMARY: Notice is hereby given that Qualcomm and Apple with additional Incorporated of San Diego, California. the U.S. International Trade time to amend their motion to terminate 83 FR 834 (Jan. 8, 2018). The complaint Commission has received a complaint and to address the IA’s concerns. The alleged violations of section 337 of the entitled Certain Toner Cartridges, Commission granted the extension Tariff Act of 1930, as amended, 19 Components Thereof, and Systems U.S.C. 1337, in the importation into the motion on May 9, 2019. Containing Same, DN 3405; the United States, the sale for importation, On May 13, 2019, Qualcomm and Commission is soliciting comments on or the sale within the United States after Apple filed an amended motion to any public interest issues raised by the importation of articles that infringe terminate. On May 21, 2019, the IA complaint or complainant’s filing claims 1, 7, 8, 10, 11, 17, and 18 of U.S. responded in partial opposition, pursuant to the Commission’s Rules of Patent No. 9,154,356 (‘‘the ’356 patent’’); explaining that the revised motion still Practice and Procedure. claim 4 of U.S. Patent No. 9,473,336 did not comply with Commission rules FOR FURTHER INFORMATION CONTACT: Lisa (‘‘the ’336 patent’’); claims 1, 5–8, 12, concerning the redaction of information. R. Barton, Secretary to the Commission, 16–18, and 21–22 of U.S. Patent No. Following that partial opposition, the IA U.S. International Trade Commission, 8,063,674 (‘‘the ’674 patent’’); claims 1– coordinated with the private parties to 500 E Street SW, Washington, DC 4, 7–9, 11, 17, 20–23, 31–33, and 36 of obtain a filing from the private parties 20436, telephone (202) 205–2000. The U.S. Patent No. 7,693,002; and claims 1– in compliance with Commission rules. public version of the complaint can be 3, 10–12, 18, and 22–24 of U.S. Patent On July 24, 2019, the Commission accessed on the Commission’s Electronic Document Information No. 9,552,633. 83 FR at 834. The notice extended the target date for completion System (EDIS) at https://edis.usitc.gov, of investigation named as the of the investigation to August 29, 2019, respondent Apple Inc. of Cupertino, and will be available for inspection and required Qualcomm and Apple to California. Id. at 835. The Office of during official business hours (8:45 a.m. file a rules-compliant motion to Unfair Import Investigations was also to 5:15 p.m.) in the Office of the terminate the investigation no later than named as a party. Id. Secretary, U.S. International Trade August 8, 2019. On August 8, 2019, Based on withdrawal of numerous Commission, 500 E Street SW, Qualcomm and Apple filed a joint asserted patent claims, see 19 CFR Washington, DC 20436, telephone (202) 210.21(a), the investigation had motion to supplement their earlier 205–2000. narrowed to claims 1 and 17 of the ’356 amended joint motion to terminate the General information concerning the patent; claim 4 of the ’336 patent; and investigation. On August 16, 2019, the Commission may also be obtained by claims 1 and 8 of the ’674 patent. Order IA responded in support of the motion. accessing its internet server at United No. 37 (Aug. 27, 2018), not reviewed, The Commission finds that States International Trade Commission Notice (Sept. 20, 2018); Order No. 43 Qualcomm’s and Apple’s motion, as (USITC) at https://www.usitc.gov. The (Oct. 3, 2018), not reviewed, Notice (Oct. amended and supplemented, is proper public record for this investigation may 29, 2018). in form and complies with Commission be viewed on the Commission’s On March 26, 2019, the presiding Rules. See 19 CFR 201.6(a), 210.21(b). Electronic Document Information administrative law judge (‘‘ALJ’’) issued The Commission further finds that System (EDIS) at https://edis.usitc.gov. the final initial determination (‘‘final termination of the investigation will not Hearing-impaired persons are advised ID’’), which found a violation of section adversely affect the public interest. that information on this matter can be 337 as to claim 1 of the ’674 patent, but Accordingly, the Commission has obtained by contacting the no violation of section 337 as to the determined to grant the amended and Commission’s TDD terminal on (202) other asserted patent claims. supplemented motion. The Commission 205–1810. On April 8, 2019, Qualcomm and hereby terminates the investigation. SUPPLEMENTARY INFORMATION: The Apple filed petitions for Commission Commission has received a complaint The authority for the Commission’s review of the final ID. On April 16, and a submission pursuant to § 210.8(b) determination is contained in section 2019, the Commission investigative of the Commission’s Rules of Practice 337 of the Tariff Act of 1930, as attorney (‘‘IA’’) filed a response to the and Procedure filed on behalf of Brother amended (19 U.S.C. 1337), and in Part petitions for review. On April 17, 2019, Industries; Ltd., Brother International Qualcomm and Apple filed a joint 210 of the Commission’s Rules of Corporation (U.S.A.); and Brother motion to stay all deadlines in the Practice and Procedure (19 CFR part Industries (U.S.A.), Inc. on August 19, investigation on the basis of the parties’ 210). 2019. The complaint alleges violations settlement. On April 19, 2019, the By order of the Commission. of section 337 of the Tariff Act of 1930

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(19 U.S.C. 1337) in the importation into (ii) identify any public health, safety, Commission should grant such the United States, the sale for or welfare concerns in the United States treatment. See 19 CFR 201.6. Documents importation, and the sale within the relating to the requested remedial for which confidential treatment by the United States after importation of orders; Commission is properly sought will be certain toner cartridges, components (iii) identify like or directly treated accordingly. All information, thereof, and systems containing same. competitive articles that complainant, including confidential business The complaint names as respondents: its licensees, or third parties make in the information and documents for which AMI Brothers, Inc. of San Bruno, CA; United States which could replace the confidential treatment is properly An An Beauty Limited of Hong Kong; subject articles if they were to be sought, submitted to the Commission for Aster Graphics, Inc. of Riverside, CA; excluded; purposes of this Investigation may be Aztech Enterprises Limited of Hong (iv) indicate whether complainant, disclosed to and used: (i) By the Kong; Billiontree Technology USA Inc. complainant’s licensees, and/or third Commission, its employees and Offices, of City of Industry, CA; Carlos Imaging party suppliers have the capacity to and contract personnel (a) for Supplies, Inc. of Hacienda Heights, CA; replace the volume of articles developing or maintaining the records Cartridge Evolution, Inc. of Brooklyn, potentially subject to the requested of this or a related proceeding, or (b) in NY; Do it Wiser, LLC of Wilmington, exclusion order and/or a cease and internal investigations, audits, reviews, DE; Eco Imaging Inc. of Irvine, CA; desist order within a commercially and evaluations relating to the Ecoolsmart Co. of Rowland Heights, CA; reasonable time; and programs, personnel, and operations of EPrinter Solution LLC of Pomona, CA; (v) explain how the requested the Commission including under 5 E–Z Ink Inc. of Brooklyn, NY; Globest remedial orders would impact United U.S.C. Appendix 3; or (ii) by U.S. Trading Inc. of Ontario, CA; Greencycle States consumers. government employees and contract Tech, Inc. of South El Monte, CA; Written submissions on the public personnel,2 solely for cybersecurity Hongkong Boze Co., Ltd. of Hong Kong; interest must be filed no later than by purposes. All nonconfidential written I8 International, Inc. of City of Industry, close of business, eight calendar days submissions will be available for public CA; IFree E-Commerce Co. of Hong after the date of publication of this inspection at the Office of the Secretary Kong; Ikong E-Commerce of Walnut, notice in the Federal Register. There and on EDIS.3 CA; Intercon International Corp. of Brea, will be further opportunities for This action is taken under the CA; IPrint Enterprise Limited of Hong comment on the public interest after the authority of section 337 of the Tariff Act Kong; LD Products, Inc. of Long Beach, issuance of any final initial of 1930, as amended (19 U.S.C. 1337), CA; Linkyo Corp. La Puente, CA; determination in this investigation. Any and of §§ 201.10 and 210.8(c) of the Mangoket LLC of Alhambra, CA; New written submissions on other issues Commission’s Rules of Practice and Era Image LLC of Corona, CA; OW must also be filed by no later than the Procedure (19 CFR 201.10, 210.8(c)). Supplies Corp. of Corona, CA; Solong E- close of business, eight calendar days By order of the Commission. Commerce Co., LLC of Hong Kong; after publication of this notice in the Smartjet E-Commerce Co., LLC of Hong Federal Register. Complainant may file Issued: August 19, 2019. Kong; Super Warehouse Inc. of Blaine, replies to any written submissions no Lisa Barton, WA; Theresa Meng of Brooklyn, NY; later than three calendar days after the Secretary to the Commission. Triple Best LLC of San Diego, CA; date on which any initial submissions [FR Doc. 2019–18172 Filed 8–22–19; 8:45 am] V4ink, Inc. of Diamond Bar, CA; and were due. Any submissions and replies BILLING CODE 7020–02–P Zhuhai Xiaohui E-Commerce Co., Ltd. filed in response to this Notice are of China. The complainant requests that limited to five (5) pages in length, the Commission issue a general inclusive of attachments. INTERNATIONAL TRADE exclusion order, or alternatively, a Persons filing written submissions COMMISSION limited exclusion order, cease and must file the original document desist orders, and impose a bond upon electronically on or before the deadlines Notice of Receipt of Complaint; respondents’ alleged infringing articles stated above and submit 8 true paper Solicitation of Comments Relating to during the 60-day Presidential review copies to the Office of the Secretary by the Public Interest period pursuant to 19 U.S.C. 1337(j). noon the next day pursuant to § 210.4(f) AGENCY: U.S. International Trade Proposed respondents, other of the Commission’s Rules of Practice Commission. interested parties, and members of the and Procedure (19 CFR 210.4(f)). ACTION: Notice. public are invited to file comments on Submissions should refer to the docket any public interest issues raised by the number (‘‘Docket No. 3405’’) in a SUMMARY: Notice is hereby given that complaint or § 210.8(b) filing. prominent place on the cover page and/ the U.S. International Trade Comments should address whether or the first page. (See Handbook for Commission has received a complaint issuance of the relief specifically Electronic Filing Procedures, Electronic entitled Certain Bone Cements and Bone requested by the complainant in this Filing Procedures 1). Persons with Cement Accessories, DN 3406; the investigation would affect the public questions regarding filing should Commission is soliciting comments on health and welfare in the United States, contact the Secretary (202–205–2000). any public interest issues raised by the competitive conditions in the United Any person desiring to submit a complaint or complainant’s filing States economy, the production of like document to the Commission in pursuant to the Commission’s Rules of or directly competitive articles in the confidence must request confidential Practice and Procedure. United States, or United States treatment. All such requests should be FOR FURTHER INFORMATION CONTACT: Lisa consumers. directed to the Secretary to the R. Barton, Secretary to the Commission, In particular, the Commission is Commission and must include a full U.S. International Trade Commission, interested in comments that: statement of the reasons why the (i) Explain how the articles 2 All contract personnel will sign appropriate potentially subject to the requested 1 Handbook for Electronic Filing Procedures: nondisclosure agreements. remedial orders are used in the United https://www.usitc.gov/documents/handbook_on_ 3 Electronic Document Information System States; filing_procedures.pdf. (EDIS): https://edis.usitc.gov.

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500 E Street SW, Washington, DC remedial orders are used in the United Commission and must include a full 20436, telephone (202) 205–2000. The States; statement of the reasons why the public version of the complaint can be (ii) identify any public health, safety, Commission should grant such accessed on the Commission’s or welfare concerns in the United States treatment. See 19 CFR 201.6. Documents Electronic Document Information relating to the requested remedial for which confidential treatment by the System (EDIS) at https://edis.usitc.gov, orders; Commission is properly sought will be and will be available for inspection (iii) identify like or directly treated accordingly. All information, during official business hours (8:45 a.m. competitive articles that complainant, including confidential business to 5:15 p.m.) in the Office of the its licensees, or third parties make in the information and documents for which Secretary, U.S. International Trade United States which could replace the confidential treatment is properly Commission, 500 E Street SW, subject articles if they were to be sought, submitted to the Commission for Washington, DC 20436, telephone (202) excluded; purposes of this Investigation may be 205–2000. (iv) indicate whether complainant, disclosed to and used: (i) By the General information concerning the complainant’s licensees, and/or third Commission, its employees and Offices, Commission may also be obtained by party suppliers have the capacity to and contract personnel (a) for accessing its internet server at United replace the volume of articles developing or maintaining the records States International Trade Commission potentially subject to the requested of this or a related proceeding, or (b) in (USITC) at https://www.usitc.gov. The exclusion order and/or a cease and internal investigations, audits, reviews, public record for this investigation may desist order within a commercially and evaluations relating to the be viewed on the Commission’s reasonable time; and programs, personnel, and operations of Electronic Document Information (v) explain how the requested the Commission including under 5 System (EDIS) at https://edis.usitc.gov. remedial orders would impact United U.S.C. Appendix 3; or (ii) by U.S. Hearing-impaired persons are advised States consumers. government employees and contract that information on this matter can be Written submissions on the public personnel 2, solely for cybersecurity obtained by contacting the interest must be filed no later than by purposes. All nonconfidential written Commission’s TDD terminal on (202) close of business, eight calendar days submissions will be available for public 205–1810. after the date of publication of this inspection at the Office of the Secretary SUPPLEMENTARY INFORMATION: The notice in the Federal Register. There and on EDIS 3. Commission has received a complaint will be further opportunities for This action is taken under the and a submission pursuant to § 210.8(b) comment on the public interest after the authority of section 337 of the Tariff Act of the Commission’s Rules of Practice issuance of any final initial of 1930, as amended (19 U.S.C. 1337), and Procedure filed on behalf of determination in this investigation. Any and of §§ 201.10 and 210.8(c) of the Zimmer, Inc. and Zimmer US, Inc. on written submissions on other issues Commission’s Rules of Practice and August 19, 2019. The complaint alleges must also be filed by no later than the Procedure (19 CFR 201.10, 210.8(c)). violations of section 337 of the Tariff close of business, eight calendar days By order of the Commission. Act of 1930 (19 U.S.C. 1337) in the after publication of this notice in the Issued: August 20, 2019. importation into the United States, the Federal Register. Complainant may file Lisa Barton, sale for importation, and the sale within replies to any written submissions no Secretary to the Commission. the United States after importation of later than three calendar days after the certain bone cements and bone cement date on which any initial submissions [FR Doc. 2019–18244 Filed 8–22–19; 8:45 am] accessories. The complaint names as were due. Any submissions and replies BILLING CODE 7020–02–P respondents: Heraeus Medical GmbH of filed in response to this Notice are Germany and Heraeus Medical LLC of limited to five (5) pages in length, INTERNATIONAL TRADE Yardley, PA. The complainant requests inclusive of attachments. COMMISSION that the Commission issue a limited Persons filing written submissions exclusion order, cease and desist orders must file the original document [Investigation No. 337–TA–1090] and impose a bond upon respondents’ electronically on or before the deadlines alleged infringing articles during the 60- stated above and submit 8 true paper Certain Intraoral Scanners and Related day Presidential review period pursuant copies to the Office of the Secretary by Hardware and Software; Commission to 19 U.S.C. 1337(j). noon the next day pursuant to § 210.4(f) Determination To Vacate the Final Proposed respondents, other of the Commission’s Rules of Practice Initial Determination Finding No interested parties, and members of the and Procedure (19 CFR 210.4(f)). Violation of Section 337 and To public are invited to file comments on Submissions should refer to the docket Terminate the Investigation in Its any public interest issues raised by the number (‘‘Docket No. 3406’’) in a Entirety complaint or § 210.8(b) filing. prominent place on the cover page and/ AGENCY: Comments should address whether U.S. International Trade or the first page. (See Handbook for Commission. issuance of the relief specifically Electronic Filing Procedures, Electronic ACTION: Notice. requested by the complainant in this Filing Procedures 1). Persons with investigation would affect the public questions regarding filing should SUMMARY: Notice is hereby given that health and welfare in the United States, contact the Secretary (202–205–2000). the U.S. International Trade competitive conditions in the United Any person desiring to submit a Commission has determined to vacate States economy, the production of like document to the Commission in the presiding administrative law judge’s or directly competitive articles in the confidence must request confidential (‘‘ALJ’’) final initial determination United States, or United States treatment. All such requests should be (‘‘ID’’) issued on April 26, 2019, finding consumers. directed to the Secretary to the In particular, the Commission is 2 All contract personnel will sign appropriate interested in comments that: 1 Handbook for Electronic Filing Procedures: nondisclosure agreements. (i) Explain how the articles https://www.usitc.gov/documents/handbook_on_ 3 Electronic Document Information System potentially subject to the requested filing_procedures.pdf. (EDIS): https://edis.usitc.gov.

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no violation of section 337 in the above- 337 with respect to the ’901, ’448, and The authority for the Commission’s referenced investigation, and to ’447 patents. That same day, the ALJ determination is contained in section terminate the investigation in its issued her Recommended 337 of the Tariff Act of 1930, as entirety. Determination on Remedy and Bonding. amended (19 U.S.C. 1337), and in part FOR FURTHER INFORMATION CONTACT: On May 13, 2019, Align filed a petition 210 of the Commission’s Rules of Cathy Chen, Esq., Office of the General for review of the final ID, and Practice and Procedure (19 CFR 210). Counsel, U.S. International Trade Respondents filed a joint contingent By order of the Commission. Commission, 500 E Street SW, petition for review of the final ID. The Issued: August 20, 2019. Washington, DC 20436, telephone (202) parties filed responses to the petitions Lisa Barton, on May 21, 2019. 205–2392. Copies of non-confidential Secretary to the Commission. On July 19, 2019, the Commission documents filed in connection with this [FR Doc. 2019–18183 Filed 8–22–19; 8:45 am] investigation are or will be available for determined to review the final ID in its BILLING CODE 7020–02–P inspection during official business entirety. hours (8:45 a.m. to 5:15 p.m.) in the Having considered the record of the Office of the Secretary, U.S. investigation, including the parties’ INTERNATIONAL TRADE International Trade Commission, 500 E submissions to the Commission, the COMMISSION Street SW, Washington, DC 20436, Commission decides as follows. The telephone (202) 205–2000. General Commission ‘‘can issue only an [Investigation No. 731–TA–1415 (Final)] information concerning the Commission exclusion order barring future Glycine From Thailand; Scheduling of may also be obtained by accessing its importation or a cease and desist order the Final Phase of Anti-Dumping Duty barring future conduct,’’ neither of internet server at https://www.usitc.gov. Investigation The public record for this investigation which can issue as to an expired patent. may be viewed on the Commission’s Texas Instruments Inc. v. U.S. Int’l AGENCY: United States International electronic docket (EDIS) at https:// Trade Comm’n, 851 F.2d 342, 344 (Fed. Trade Commission. edis.usitc.gov. Hearing-impaired Cir. 1988). ACTION: Notice. persons are advised that information on The ’448 and ’447 patents expired on this matter can be obtained by August 5, 2019, which terminated the DATES: Effective Date: August 16, 2019. contacting the Commission’s TDD Commission’s jurisdiction as to these FOR FURTHER INFORMATION CONTACT: terminal on (202) 205–1810. patents and rendered the Commission’s Celia Feldpausch 202–205–2387, Office SUPPLEMENTARY INFORMATION: The investigation with respect to these of Investigations, U.S. International Commission instituted this investigation patents moot. See id.; 19 U.S.C. Trade Commission, 500 E Street SW, on December 19, 2017, based on a 1337(a)(1)(B)(i). Washington, DC 20436. Hearing- complaint filed on behalf of Align The ’901 patent will expire on August impaired persons can obtain Technology, Inc. (‘‘Align’’) of San Jose, 30, 2019, four days after the target date information on this matter by contacting California. 82 FR 60215 (Dec. 19, 2017). for completion of the investigation. the Commission’s TDD terminal on 202– The complaint alleges violations of Given the imminent expiration of the 205–1810. Persons with mobility section 337 of the Tariff Act of 1930, as ’901 patent, the ID’s finding of no impairments who will need special amended, 19 U.S.C. 1337 (‘‘section violation with respect to the ’901 patent assistance in gaining access to the 337’’), in the importation into the based on multiple grounds, and the Commission should contact the Office United States, the sale for importation, schedule for Commission review of the Secretary at 202–205–2000. or the sale within the United States after established by the Commission’s Rules General information concerning the importation of certain intraoral scanners of Practice and Procedure, the Commission may also be obtained by and related hardware and software by Commission finds that Align cannot accessing its internet server (https:// reason of infringement of one or more obtain effective relief as to the ’901 www.usitc.gov). The public record for claims of U.S. Patent Nos.: 9,615,901 patent prior to its expiration. Even if the these investigations may be viewed on (‘‘the ’901 patent’’); 8,638,448 (‘‘the ’448 Commission were to reverse the ID in the Commission’s electronic docket patent’’); 8,638,447 (‘‘the ’447 patent’’); this investigation and find a violation (EDIS) at https://edis.usitc.gov. 6,845,175 (‘‘the ’175 patent’’); and with respect to the ’901 patent, the SUPPLEMENTARY INFORMATION: Effective 6,334,853 (‘‘the ’853 patent’’). Id. The Commission finds that it cannot grant October 31, 2018, the Commission complaint further alleges that a relief as to the ’901 patent before the established a general schedule for the domestic industry exists. The patent expires given its long-standing conduct of the final phase of its Commission’s notice of investigation procedures for determining the investigations on glycine from China, named as respondents 3Shape A/S of appropriate remedy and bonding, and India, Japan, and Thailand.1 Due to the Copenhagen K, Denmark and 3Shape, for considering the public interest. lapse in appropriations and ensuring Inc., of Warren, New Jersey. The notice Moreover, any exclusion order with cessation of Commission operations, the of investigation was amended to add respect to the ’901 patent would likely Commission revised its schedule on 3Shape Trios A/S of Copenhagen K, not protect complainant from any injury February 6, 2019, to conduct the final Denmark as a respondent. 83 FR 13782 until after the patent expires given that phase of its investigations on glycine (Mar. 30, 2018). The Office of Unfair the ALJ recommended that no bond be from China, India, Japan, and Thailand 2 Import Investigations is not imposed during the 60-day Presidential following preliminary determinations participating in the investigation. The review period. by the U.S. Department of Commerce investigation was terminated as to the The Commission has therefore ’853 and ’175 patents and certain claims determined on review to vacate the final 1 Glycine From China, India, Japan, and of the ’447, ’448, and ’901 patents based ID as moot, including the ID’s finding of Thailand; Scheduling of the Final Phase of on the withdrawal of Align’s allegations. no violation of section 337 with respect Countervailing Duty and Anti-Dumping Duty Investigations (83 FR 62345, December 3, 2018). to the asserted patents. The See ID at 1–2. 2 Glycine From China, India, Japan, and On April 26, 2019, the ALJ issued the investigation is terminated in its Thailand; Revised Schedule for Final Phase of final ID, finding no violation of section entirety. Investigations (84 FR 3486, February 6, 2019).

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(‘‘Commerce’’) that countervailable final comments that contain no new provided for in subheading 4418.73.40 subsidies are being provided to factual information and may not exceed of the Harmonized Tariff Schedule, from producers and exporters of glycine from five (5) pages in length, on September the list of articles being considered for China and India 3 and that imports of 10, 2019. redesignation in table C of the Annex to glycine from India and Japan,4 were For further information concerning USTR’s request letter. As a result, the being sold at less than fair value this investigation see the Commission’s Commission will not provide advice (‘‘LTFV’’) in the United States. Notice of notice cited above and the regarding this article. the scheduling of the final phase of the Commission’s Rules of Practice and Commission’s investigations and of a Procedure, part 201, subparts A and B DATES: September 9, 2019: Transmittal public hearing to be held in connection (19 CFR part 201), and part 207, of Commission report to the USTR. therewith was given by posting copies subparts A and C (19 CFR part 207). ADDRESSES: All Commission offices, of the notice in the Office of the Additional written submissions to the including the Commission’s hearing Secretary, U.S. International Trade Commission, including requests rooms, are located in the United States Commission, Washington, DC, and by pursuant to section 201.12 of the International Trade Commission publishing the notice in the Federal Commission’s rules, shall not be Building, 500 E Street SW, Washington, Register of February 6, 2019 (84 FR accepted unless good cause is shown for DC. All written submissions should be 3486). The hearing was held in accepting such submissions, or unless addressed to the Secretary, United Washington, DC, on April 30, 2019, and the submission is pursuant to a specific States International Trade Commission, all persons who requested the request by a Commissioner or 500 E Street SW, Washington, DC opportunity were permitted to appear in Commission staff. 20436. The public record for this person or by counsel. The Commission In accordance with sections 201.16(c) investigation may be viewed on the subsequently determined that imports of and 207.3 of the Commission’s rules, Commission’s electronic docket (EDIS) glycine from India and Japan are sold in each document filed by a party to the at https://edis.usitc.gov. the United States at LTFV and that investigations must be served on all imports of glycine are being subsidized other parties to the investigations (as FOR FURTHER INFORMATION CONTACT: by the governments of China and India.5 identified by either the public or BPI Information specific to this investigation Commerce has issued a final affirmative service list), and a certificate of service may be obtained from Mark Brininstool, determination that glycine from must be timely filed. The Secretary will Project Leader, Office of Industries Thailand is being, or is likely to be, sold not accept a document for filing without (202–708–1395 or mark.brininstool@ in the United States at LTFV.67 a certificate of service. usitc.gov), Sharon Ford, Deputy Project Leader, Office of Industries (202–205– Accordingly, the Commission currently Authority: This investigation is being is issuing a supplemental schedule for conducted under authority of title VII of the 3084 or [email protected]), or its antidumping duty investigation on Tariff Act of 1930; this notice is published Marin Weaver, Technical Advisor, imports of glycine from Thailand. pursuant to section 207.21 of the Office of Industries (202–205–3461 or This supplemental schedule is as Commission’s rules. [email protected]). For follows: The deadline for filing By order of the Commission. information on the legal aspects of this supplemental briefs is August 30, 2019. Issued: August 19, 2019. investigation, contact William Gearhart Supplemental briefs may address only of the Commission’s Office of the Lisa Barton, the Commission’s final antidumping General Counsel (202–205–3091 or duty determination regarding imports of Secretary to the Commission. [email protected]). The media glycine from Thailand. These [FR Doc. 2019–18144 Filed 8–22–19; 8:45 am] should contact Margaret O’Laughlin, supplemental briefs may not exceed BILLING CODE 7020–02–P Office of External Relations (202–205– fifteen (15) pages in length. The 1819 or [email protected]). supplemental staff report in the final Hearing-impaired individuals may phase of this investigation regarding INTERNATIONAL TRADE obtain information on this matter by subject imports from Thailand will be COMMISSION contacting the Commission’s TDD placed in the nonpublic record on [Investigation No. 332–572] terminal at 202–205–1810. General September 5, 2019; and a public version information concerning the Commission will be issued thereafter. Parties to this Generalized System of Preferences: may also be obtained by accessing its investigation may file supplemental Possible Modifications, 2018 Review website (http://www.usitc.gov). Persons with mobility impairments who will AGENCY: United States International 3 Glycine From the People’s Republic of China: Trade Commission. need special assistance in gaining access Final Affirmative Countervailing Duty to the Commission should contact the Determination (84 FR 18489, May 1, 2019) and ACTION: Notice of amendment of scope Office of the Secretary at 202–205–2000. Countervailing Duty Investigation of Glycine From of investigation. India: Affirmative Final Determination (84 FR Background: All dates and other 18482, May 1, 2019). SUMMARY: Following receipt on August information relating to this investigation 4 Glycine From India: Final Determination of Sales at Less Than Fair Value (84 FR 18487, May 8, 2019, of a correction to the United remain the same as in the Commission’s 1, 2019) and Glycine From Japan: Final States Trade Representative’s (USTR) notice of investigation and public Determination of Sales at Less Than Fair Value (84 request letter of June 4, 2019, the U.S. hearing issued on June 7, 2019 and FR 18484, May 1, 2019). International Trade Commission published in the Federal Register of 5 Glycine From China, India, and Japan; Determinations (84 FR 29238, June 21, 2019). (Commission) has amended the scope of June 11, 2019 (84 FR 27159). 6 Glycine From Thailand: Final Determination of its investigation No. 332–572, By order of the Commission. Sales at Less Than Fair Value and Final Affirmative Generalized System of Preferences: Issued: August 19, 2019. Determination of Critical Circumstances in Part (84 Possible Modifications, 2018 Review, FR 37998, August 5, 2019). and has removed assembled flooring Lisa Barton, 7 Glycine From Thailand: Final Negative Secretary to the Commission. Countervailing Duty Determination and Final panels of bamboo, other than for mosaic, [FR Doc. 2019–18160 Filed 8–22–19; 8:45 am] Negative Critical Circumstances Determination (84 multilayer, having a face ply more than FR 38007, August 5, 2019). 6 mm in thickness from Indonesia, BILLING CODE 7020–02–P

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DEPARTMENT OF JUSTICE (HUD), Director of the Office of National attendance will also be considered by Drug Control Policy, Chief Executive the Council. Office of Justice Programs Officer of the Corporation for National Elizabeth Wolfe, and Community Service and the [OJP (OJJDP) Docket No. 1765] Training and Outreach Coordinator, Office Assistant Secretary of Homeland of Juvenile Justice and Delinquency Meeting of the Coordinating Council Security for the U.S. Immigration and Prevention. on Juvenile Justice and Delinquency Customs Enforcement. Nine additional [FR Doc. 2019–18150 Filed 8–22–19; 8:45 am] Prevention members are appointed by the Speaker BILLING CODE 4410–18–P AGENCY: Coordinating Council on of the U.S. House of Representatives, the Juvenile Justice and Delinquency U.S. Senate Majority Leader and the Prevention, Department of Justice. President of the United States. Further DEPARTMENT OF JUSTICE ACTION: Notice of meeting. agencies that take part in Council activities include, the Departments of Office of Justice Programs SUMMARY: The Coordinating Council on Agriculture, Defense, Interior and the [OJP (OJJDP) Docket No. 1764 ] Juvenile Justice and Delinquency Substance and Mental Health Services Prevention announces its next meeting. Administration of HHS. Meeting of the Federal Advisory Committee on Juvenile Justice DATES: Thursday September 12th, 2019 Council meeting agendas are available at 10:00 a.m. EDT. on www.juvenilecouncil.gov. Agendas AGENCY: Office of Juvenile Justice and ADDRESSES: The meeting will take place will generally include: (a) Opening Delinquency Prevention, Department of in the third floor main conference room remarks and introductions; (b) Justice. at the U.S. Department of Justice, Office Presentations and discussion of agency ACTION: Notice of meeting. of Justice Programs, 810 7th St. NW, work; and (c) Council member SUMMARY: The Office of Juvenile Justice Washington, DC 20531. announcements. FOR FURTHER INFORMATION CONTACT: Visit and Delinquency Prevention has the website for the Coordinating Council For security purposes and because scheduled a meeting of the Federal at www.juvenilecouncil.gov or or contact space is limited, members of the public Advisory Committee on Juvenile Justice Elizabeth Wolfe, Designated Federal who wish to attend must register in (FACJJ). Official (DFO), OJJDP, by telephone at advance of the meeting online at the DATES: Thursday September 12th, 2019 (202) 598–9310, email at meeting registration site, no later than at 11:00 a.m.–Noon EDT. [email protected]; or Friday September 6th, 2019. Should ADDRESSES: The meeting will take place Maegen Barnes, Senior Program issues arise with online registration, or remotely via webinar. Manager/Federal Contractor, by to register by fax or email, the public FOR FURTHER INFORMATION CONTACT: Visit telephone (732) 948–8862, email at should contact Maegen Barnes, Senior the website for the FACJJ at [email protected], or fax at Program Manager/Federal Contractor www.facjj.ojp.gov or contact Elizabeth (866) 854–6619. Please note that the (see above for contact information). If Wolfe, Designated Federal Official above phone/fax numbers are not toll submitting registrations via fax or email, (DFO), OJJDP, by telephone at (202) free. attendees should include all of the 598–9310, email at elizabeth.wolfe@ SUPPLEMENTARY INFORMATION: The following: Name, Title, Organization/ ojp.usdoj.gov; or Maegen Barnes, Senior Coordinating Council on Juvenile Affiliation, Full Address, Phone Program Manager/Federal Contractor, by Justice and Delinquency Prevention Number, Fax and Email. The meeting telephone (732) 948–8862, email at (‘‘Council’’), established by statute in will also be available to join online via [email protected], or fax at the Juvenile and Delinquency Webex, a video conferencing platform. (866) 854–6619. Please note that the Prevention Act of 1974 section 206 (a) Registration for this is also found online above phone/fax numbers are not toll (42 U.S.C. 5616(a)), will meet to carry at www.juvenilecouncil.gov. free. SUPPLEMENTARY INFORMATION: out its advisory functions. Information Note: Photo identification will be required The regarding this meeting will be available to attend the meeting at the OJP 810 7th Federal Advisory Committee on on the Council’s web page at Street Building. Juvenile Justice (FACJJ), established www.juvenilecouncil.gov. The meeting pursuant to Section 3(2)A of the Federal is open to the public, and available via Interested parties may submit written Advisory Committee Act (5 U.S.C. online video conference, but prior comments and questions in advance to App.2), will meet to carry out its registration is required (see below). In Elizabeth Wolfe (DFO) for the Council, advisory functions under Section addition, meeting documents will be at the contact information above. If 223(f)(2)(C–E) of the Juvenile Justice and viewable via this website including faxing, please follow up with Maegen Delinquency Prevention Act of 2002. meeting announcements, agendas, Barnes, Senior Program Manager/ The FACJJ is composed of minutes and reports. Federal Contractor (contact information representatives from the states and Although designated agency above) in order to assure receipt of territories. FACJJ member duties representatives may attend in lieu of submissions. All comments and include: Reviewing Federal policies members, the Council’s formal regarding juvenile justice and questions should be submitted no later membership consists of the following delinquency prevention; advising the than 5:00 p.m. EDT on Friday secretaries and/or agency officials; OJJDP Administrator with respect to September 6th, 2019. Attorney General (Chair), Administrator particular functions and aspects of of the Office of Juvenile Justice and The Council will limit public OJJDP; and advising the President and Delinquency Prevention (Vice Chair), statements if they are found to be Congress with regard to State Secretary of Health and Human Services duplicative. Written questions perspectives on the operation of OJJDP (HHS), Secretary of Labor (DOL), submitted by the public while in and Federal legislation pertaining to Secretary of Education (DOE), Secretary juvenile justice and delinquency of Housing and Urban Development prevention. More information on the

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FACJJ may be found at (PRA). Public comments on the ICR are of information, and the public is www.facjj.ojp.gov. invited. generally not required to respond to an FACJJ meeting agendas are available DATES: The OMB will consider all information collection, unless the OMB on www.facjj.ojp.gov. Agendas will written comments that agency receives under the PRA approves it and displays generally include: (a) Opening remarks on or before September 23, 2019. a currently valid OMB Control Number. and introductions; (b) Presentations and ADDRESSES: A copy of this ICR with In addition, notwithstanding any other discussion; and (c) member applicable supporting documentation; provisions of law, no person shall announcements. including a description of the likely generally be subject to penalty for The meeting will be available online respondents, proposed frequency of failing to comply with a collection of via Adobe Connect, a video response, and estimated total burden information that does not display a conferencing platform. Members of the may be obtained free of charge from the valid Control Number. See 5 CFR public who wish to participate must RegInfo.gov website at http:// 1320.5(a) and 1320.6. The DOL obtains register in advance of the meeting www.reginfo.gov/public/do/PRAView OMB approval for this information online at FACJJ Meeting Registration, no ICR?ref_nbr=201907-1205-005 (this link collection under Control Number 1205– later than Friday September 6th, 2019. will only become active on the day 0137. Should issues arise with online following publication of this notice) or OMB authorization for an ICR cannot registration, or to register by fax or by contacting Frederick Licari by be for more than three (3) years without email, the public should contact Maegen telephone at 202–693–8073, TTY 202– renewal, and the current approval for Barnes, Senior Program Manager/ 693–8064, (these are not toll-free this collection is scheduled to expire on Federal Contractor (see above for numbers) or by email at DOL_PRA_ August 31, 2019. The DOL seeks to contact information). [email protected]. extend PRA authorization for this Interested parties may submit written Submit comments about this request information collection for three (3) more comments and questions in advance to by mail to the Office of Information and years, without any change to existing Elizabeth Wolfe (DFO) for the FACJJ, at Regulatory Affairs, Attn: OMB Desk requirements. The DOL notes that the contact information above. If faxing, Officer for DOL–ETA, Office of existing information collection please follow up with Maegen Currie, Management and Budget, Room 10235, requirements submitted to the OMB Senior Program Manager/Federal 725 17th Street NW, Washington, DC receive a month-to-month extension Contractor (see above for contact 20503; by Fax: 202–395–5806 (this is while they undergo review. For information) in order to assure receipt of not a toll-free number); or by email: additional substantive information submissions. All comments and [email protected]. about this ICR, see the related notice questions should be submitted no later Commenters are encouraged, but not published in the Federal Register on than 5:00 p.m. EDT on Friday required, to send a courtesy copy of any May 29, 2019 (84 FR 24822). September 6th, 2019. comments by mail or courier to the U.S. Interested parties are encouraged to The FACJJ will limit public Department of Labor-OASAM, Office of send comments to the OMB, Office of statements if they are found to be the Chief Information Officer, Attn: Information and Regulatory Affairs at duplicative. Written questions Departmental Information Compliance the address shown in the ADDRESSES submitted by the public while in Management Program, Room N1301, section within thirty-(30) days of attendance will also be considered by 200 Constitution Avenue NW, publication of this notice in the Federal the FACJJ. Washington, DC 20210; or by email: Register. In order to help ensure appropriate consideration, comments Elizabeth Wolfe, [email protected]. should mention OMB Control Number FOR FURTHER INFORMATION CONTACT: Training and Outreach Coordinator, Office 1205–0137. The OMB is particularly of Juvenile Justice and Delinquency Frederick Licari by telephone at 202– Prevention. interested in comments that: 693–8073, TTY 202–693–8064, (these • Evaluate whether the proposed [FR Doc. 2019–18149 Filed 8–22–19; 8:45 am] are not toll-free numbers) or by email at _ _ collection of information is necessary BILLING CODE 4410–18–P DOL PRA [email protected]. for the proper performance of the SUPPLEMENTARY INFORMATION: This ICR functions of the agency, including seeks to extend PRA authority for the whether the information will have DEPARTMENT OF LABOR Occupational Code Assignment practical utility: information collection. Information • Evaluate the accuracy of the Office of the Secretary collected on Form ETA–741, agency’s estimate of the burden of the Occupational Code Assignment (OCA), Agency Information Collection proposed collection of information, is necessary to help occupational Activities; Submission for OMB including the validity of the information users relate an occupational Review; Comment Request; methodology and assumptions used. specialty or job title to an occupational • Occupational Code Assignment Enhance the quality, utility, and code and title within the framework of clarity of the information to be ACTION: Notice of availability; request the Occupational Information Network. collected; and for comments. The form helps provide occupation • Minimize the burden of the codes for jobs where duties have collection of information on those who SUMMARY: The Department of Labor changed to the extent that the published are to respond, including through the (DOL) is submitting the Employment information is no longer appropriate or use of appropriate automated, and Training Administration (ETA) the user is unable to classify the job on electronic, mechanical, or other sponsored information collection his or her own. Section 308 of the technological collection techniques or request (ICR) titled, ‘‘Occupational Code Workforce Innovation and Opportunity other forms of information technology, Assignment,’’ to the Office of Act (2014) authorizes this information e.g., permitting electronic submission of Management and Budget (OMB) for collection. See 29 U.S.C. 49l-1. responses. review and approval for continued use, This information collection is subject Agency: DOL–ETA. without change, in accordance with the to the PRA. A Federal agency generally Title of Collection: Occupational Code Paperwork Reduction Act of 1995 cannot conduct or sponsor a collection Assignment.

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OMB Control Number: 1205–0137. Submit comments about this request a currently valid OMB Control Number. Affected Public: State, Local and by mail to the Office of Information and In addition, notwithstanding any other Tribal Governments. Regulatory Affairs, Attn: OMB Desk provisions of law, no person shall Total Estimated Number of Officer for DOL–WHD, Office of generally be subject to penalty for Respondents: 25. Management and Budget, Room 10235, failing to comply with a collection of Total Estimated Number of 725 17th Street NW, Washington, DC information that does not display a Responses: 25. 20503; by Fax: 202–395–5806 (this is valid Control Number. See 5 CFR Total Estimated Annual Time Burden: not a toll-free number); or by email: 1320.5(a) and 1320.6. The DOL obtains 15 hours. [email protected]. OMB approval for this information Total Estimated Annual Other Costs Commenters are encouraged, but not collection under Control Number 1235– Burden: $0. required, to send a courtesy copy of any 0023. Authority: 44 U.S.C. 3507(a)(1)(D). comments by mail or courier to the U.S. OMB authorization for an ICR cannot Dated: August 19, 2019. Department of Labor-OASAM, Office of be for more than three (3) years without Frederick Licari, the Chief Information Officer, Attn: renewal, and the current approval for this collection is scheduled to expire on Departmental Clearance Officer. Departmental Information Compliance August 31, 2019. The DOL seeks to [FR Doc. 2019–18174 Filed 8–22–19; 8:45 am] Management Program, Room N1301, 200 Constitution Avenue NW, extend PRA authorization for this BILLING CODE 4510–FN–P Washington, DC 20210; or by email: information collection for three (3) more [email protected]. years, without any change to existing requirements. The DOL notes that DEPARTMENT OF LABOR FOR FURTHER INFORMATION CONTACT: Frederick Licari by telephone at 202– existing information collection Office of the Secretary 693–8073, TTY 202–693–8064, (these requirements submitted to the OMB are not toll-free numbers) or by email at receive a month-to-month extension Agency Information Collection [email protected]. while they undergo review. For Activities; Submission for OMB additional substantive information SUPPLEMENTARY INFORMATION: This ICR Review; Comment Request; Requests about this ICR, see the related notice seeks to extend PRA authority for the To Approve Conformed Wage published in the Federal Register on Requests to Approve Conformed Wage Classifications and Unconventional February 28, 2019 (84 FR 6836). Classifications and Unconventional Fringe Benefit Plans Under the Davis- Interested parties are encouraged to Fringe Benefit Plans Under the Davis- Bacon and Related Acts and Contract send comments to the OMB, Office of Bacon and Related Acts and Contract Work Hours and Safety Standards Act Information and Regulatory Affairs at Work Hours and Safety Standards Act the address shown in the ADDRESSES ACTION: Notice of availability; request information collection. Regulations 29 section within thirty-(30) days of for comments. CFR part 5 prescribe labor standards for publication of this notice in the Federal federally financed and assisted Register. In order to help ensure SUMMARY: The Department of Labor construction contracts subject to the appropriate consideration, comments (DOL) is submitting the Wage and Hour Davis Bacon Act (DBA), 40 U.S.C. 3141 Division (WHD) sponsored information should mention OMB Control Number et seq., the Davis-Bacon Related Acts 1235–0023. The OMB is particularly collection request (ICR) titled, ‘‘Requests (DBRA), and labor standards for all to Approve Conformed Wage interested in comments that: contracts subject to the Contract Work • Evaluate whether the proposed Classifications and Unconventional Hours and Safety Standards Act Fringe Benefit Plans Under the Davis- collection of information is necessary (CWHSSA), 40 U.S.C. 3701 et seq. The for the proper performance of the Bacon and Related Acts and Contract DBA and DBRA require payment of Work Hours and Safety Standards Act,’’ functions of the agency, including locally prevailing wages and fringe whether the information will have to the Office of Management and Budget benefits, as determined by the (OMB) for review and approval for practical utility: Department of Labor (DOL), to laborers • Evaluate the accuracy of the continued use, without change, in and mechanics on most federally agency’s estimate of the burden of the accordance with the Paperwork financed or assisted construction proposed collection of information, Reduction Act of 1995 (PRA). Public projects. 40 U.S.C. 3142(a)–(b) and 29 comments on the ICR are invited. including the validity of the CFR 5.5(a)(1). The CWHSSA requires methodology and assumptions used. DATES: The OMB will consider all the payment of one and one-half times • Enhance the quality, utility, and written comments that agency receives the basic rate of pay for hours worked clarity of the information to be on or before September 23, 2019. over forty in a week on most federal collected; and ADDRESSES: A copy of this ICR with contracts involving the employment of • Minimize the burden of the applicable supporting documentation; laborers or mechanics. See 40 U.S.C. collection of information on those who including a description of the likely 3702(a) and 29 CFR 5.5(b)(1). The are to respond, including through the respondents, proposed frequency of requirements of this information use of appropriate automated, response, and estimated total burden collection consist of: (A) Reports of electronic, mechanical, or other may be obtained free of charge from the conformed classifications and wage technological collection techniques or RegInfo.gov website at http:// rates, and (B) requests for approval of other forms of information technology, www.reginfo.gov/public/do/PRAView unconventional fringe benefit plans. See e.g., permitting electronic submission of ICR?ref_nbr=201905-1235-002 (this link 40 U.S.C. 3141; 40 U.S.C. 3701. responses. will only become active on the day This information collection is subject Agency: DOL–WHD. following publication of this notice) or to the PRA. A Federal agency generally Title of Collection: Requests to by contacting Frederick Licari by cannot conduct or sponsor a collection Approve Conformed Wage telephone at 202–693–8073, TTY 202– of information, and the public is Classifications and Unconventional 693–8064, (these are not toll-free generally not required to respond to an Fringe Benefit Plans Under the Davis- numbers) or by email at DOL_PRA_ information collection, unless the OMB Bacon and Related Acts and Contract [email protected]. under the PRA approves it and displays Work Hours and Safety Standards Act.

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OMB Control Number: 1235–0023. Jennifer Borges; telephone: 301–287– Accession No. ML19205A273) to Affected Public: Private Sector— 9127; email: [email protected]. evaluate the proposed action, which is Businesses or other for-profits. For technical questions, contact the for the NRC to grant an exemption to Total Estimated Number of individual listed in the FOR FURTHER Arizona Public Service Company to Respondents: 8,518. INFORMATION CONTACT section of this allow loading and storage of spent fuel Total Estimated Number of document. with a larger maximum pellet diameter Responses: 8,518. • NRC’s Agencywide Documents than that is authorized in Amendment Total Estimated Annual Time Burden: Access and Management System No. 7 of the NAC International (NAC) 2,143 hours. (ADAMS): You may obtain publicly- CoC No. 1031 for the MAGNASTOR® Total Estimated Annual Other Costs available documents online in the storage system. Burden: $4,941. ADAMS Public Documents collection at The EA defines the NRC’s proposed action (i.e., to grant the exemption Authority: 44 U.S.C. 3507(a)(1)(D). https://www.nrc.gov/reading-rm/ adams.html. To begin the search, select request per 10 CFR 72.7) and the Dated: August 19, 2019. ‘‘Begin Web-based ADAMS Search.’’ For purpose of and need for the proposed Frederick Licari, problems with ADAMS, please contact action. Evaluations of the potential Departmental Clearance Officer. the NRC’s Public Document Room (PDR) environmental impacts of the proposed [FR Doc. 2019–18175 Filed 8–22–19; 8:45 am] reference staff at 1–800–397–4209, 301– action and alternatives to the proposed BILLING CODE 4510–27–P 415–4737, or by email to pdr.resource@ action are presented, followed by the nrc.gov. The ADAMS accession number NRC’s conclusion. for each document referenced in this This EA evaluates the potential NUCLEAR REGULATORY document (if that document is available environmental impacts of granting the COMMISSION in ADAMS) is provided the first time exemption to load and store spent fuel that a document is referenced. with a maximum pellet diameter than [Docket Nos. 72–1031, 72–44, 50–528, 50– • NRC’s PDR: You may examine and authorized in Certificate of Compliance 529, and 50–530; NRC–2019–0161] No. 1031, Amendment No. 7 in the purchase copies of public documents at ® the NRC’s PDR, Room O1–F21, One MAGNASTOR storage system at the Arizona Public Service Company; Palo Palo Verde Nuclear Generating Station Verde Nuclear Generating Station; White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. site. The potential environmental Independent Spent Fuel Storage impact of using NRC-approved storage FOR FURTHER INFORMATION CONTACT: Installation casks was initially analyzed in the EA Bernard White, Office of Nuclear for the rulemaking to provide for the AGENCY: Nuclear Regulatory Material Safety and Safeguards, U.S. Commission. storage of spent fuel under a general Nuclear Regulatory Commission, license on July 18, 1990 (55 FR 29181). ACTION: Environmental assessment and Washington, DC 20555; telephone: 301– The environmental assessment for the finding of no significant impact; ® 415–6577; email: Bernard.White@ MAGNASTOR storage system, issuance. nrc.gov. Certificate of Compliance No. 1031, SUMMARY: The U.S. Nuclear Regulatory SUPPLEMENTARY INFORMATION: Amendment No. 7, (82 FR 25931) tiers off the environmental assessment for the Commission (NRC) is considering an I. Introduction exemption request from Arizona Public 1990 final rule. Service Company to allow the Palo The NRC is reviewing an exemption NRC staff finds that the Verde Nuclear Generating Station to request from Arizona Public Service environmental effects from this load spent fuel with a larger pellet Company, dated July 5, 2019 (ADAMS exemption request is bounded by the EA diameter than is authorized in the Accession No. ML19186A449). Arizona for Certificate of Compliance No. 1031, ® Public Service Company is requesting MAGNASTOR storage cask system in Amendment No. 7, and that there will an exemption from the requirements of be no significant environmental impacts Certificate of Compliance No. 1031, title 10 of the Code of Federal from the proposed action. The proposed Amendment No. 7. The NRC prepared Regulations (10 CFR) §§ 72.212(a)(2), action does not change the types or an environmental assessment (EA) 72.212(b)(3), 72.212(b)(5)(i), 72.214, and quantities of effluents that may be documenting its finding. The NRC the portion of 72.212(b)(11) that requires released offsite, and it does not increase concluded that the proposed action compliance with the terms, conditions, occupational or public radiation would have no significant and specifications of the Certificate of exposure. The request by Arizona Public environmental impact. Accordingly, the Compliance No. 1015, for spent fuel Service Company to increase the pellet NRC staff is issuing a finding of no storage at the Palo Verde Nuclear diameter without a corresponding significant impact (FONSI) associated Generating Station independent spent increase in the uranium oxide loading of with the proposed exemption. fuel storage installation. fuel assemblies will not result an DATES: The EA and FONSI referenced in Specifically, Arizona Public Service inadvertent criticality event. Therefore, this document are available on August Company requested an exemption to there are no significant radiological 19, 2019. load and store Combustion Engineering environmental impacts associated with ADDRESSES: Please refer to Docket ID spent fuel with a larger maximum pellet the proposed action. There is no change NRC–2019–0161 when contacting the diameter than authorized in to the non-radiological effluents. The NRC about the availability of Amendment No. 7 of Certificate of proposed action will take place within information regarding this document. Compliance No. 1031 for the the site boundary and does not have You may obtain publicly-available MAGNASTOR® storage system. other environmental impacts. Thus, the information related to this document proposed action will not have a using any of the following methods: II. Environmental Assessment significant effect on the quality of the • Federal Rulemaking Website: Go to Summary human environment. Therefore, the https://www.regulations.gov/ and search Under the requirements of §§ 51.21 environmental impacts of the proposed for Docket ID NRC–2019–0161. Address and 51.30(a), the NRC staff developed action are no greater than those questions about NRC docket IDs to an environmental assessment (ADAMS described in the EA for the rulemaking

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to add the MAGNASTOR® storage SUMMARY: The U.S. Nuclear Regulatory Clearance Officer, David Cullison, system, Certificate of Compliance No. Commission (NRC) has recently Office of the Chief Information Officer, 1031, Amendment No. 7 to 10 CFR submitted a request for renewal of an U.S. Nuclear Regulatory Commission, 72.214. existing collection of information to the Washington, DC 20555–0001; telephone: Office of Management and Budget 301–415–2084; email: III. Finding of No Significant Impact (OMB) for review. The information [email protected]. The NRC staff has prepared an EA and collection is entitled, ‘‘Access B. Submitting Comments associated FONSI in support of the Authorization.’’ proposed action. The NRC staff has The NRC cautions you not to include DATES: Submit comments by September concluded that the proposed action, for identifying or contact information in 23, 2019. Comments received after this the NRC to grant the exemption comment submissions that you do not date will be considered if it is practical requested for Palo Verde Nuclear want to be publicly disclosed in your to do so, but the Commission is able to Generating Station, allowing the use of comment submission. All comment ensure consideration only for comments a larger pellet diameter in Amendment submissions are posted at https:// received on or before this date. No. 7 for the MAGNASTOR® storage www.regulations.gov/ and entered into system, will not significantly impact the ADDRESSES: Submit comments directly ADAMS. Comment submissions are not quality of the human environment, and to the OMB reviewer at: OMB Office of routinely edited to remove identifying that the proposed action is the preferred Information and Regulatory Affairs or contact information. alternative. The environmental impacts (3150–0046). Attn: Desk Officer for the If you are requesting or aggregating are bounded by the previous EA for the Nuclear Regulatory Commission, 725 comments from other persons for 17th Street NW, Washington, DC 20503; submission to the OMB, then you rulemaking to add the Certificate of _ Compliance No. 1031, Amendment No. email: oira [email protected]. should inform those persons not to 7, cask system to 10 CFR 72.214. FOR FURTHER INFORMATION CONTACT: include identifying or contact The NRC provided the Arizona David Cullison, NRC Clearance Officer, information that they do not want to be Department of Health Services-Bureau U.S. Nuclear Regulatory Commission, publicly disclosed in their comment of Radiation Control a draft copy of this Washington, DC 20555–0001; telephone: submission. Your request should state EA for review in an email dated July 24, 301–415–2084; email: that comment submissions are not 2019 (ADAMS Accession No. [email protected]. routinely edited to remove such ML19205A323). SUPPLEMENTARY INFORMATION: information before making the comment The NRC staff has determined that submissions available to the public or I. Obtaining Information and this exemption would have no impact entering the comment into ADAMS. Submitting Comments on historic and cultural resources or II. Background ecological resources and therefore no A. Obtaining Information consultations are necessary under Under the provisions of the Please refer to Docket ID NRC–2018– Paperwork Reduction Act of 1995 (44 Section 7 of the Endangered Species Act 0272 when contacting the NRC about and Section 106 of the National Historic U.S.C. Chapter 35), the NRC recently the availability of information for this submitted a request for renewal of an Preservation Act, respectively. action. You may obtain publicly- Therefore, the NRC finds that there existing collection of information to available information related to this OMB for review entitled, title 10 of the are no significant environmental action by any of the following methods: impacts from the proposed action, and • Code of Federal Regulations (10 CFR) Federal rulemaking website: Go to part 25, ‘‘Access Authorization.’’ The that preparation of an environmental https://www.regulations.gov/ and search impact statement is not warranted. NRC hereby informs potential for Docket ID NRC–2018–0272. respondents that an agency may not Accordingly, the NRC has determined • NRC’s Agencywide Documents that a FONSI is appropriate. conduct or sponsor, and that a person is Access and Management System not required to respond to, a collection Dated at Rockville, Maryland, this 19th day (ADAMS): You may obtain publicly- of information unless it displays a of August, 2019. available documents online in the currently valid OMB control number. For the Nuclear Regulatory Commission. ADAMS Public Documents collection at The NRC published a Federal John B. McKirgan, https://www.nrc.gov/reading-rm/ Register notice with a 60-day comment Chief, Spent Fuel Licensing Branch, Division adams.html. To begin the search, select period on this information collection on of Spent Fuel Management, Office of Nuclear ‘‘Begin Web-based ADAMS Search.’’ For May 1, 2019 (84 FR 18590). Material Safety and Safeguards. problems with ADAMS, please contact 1. The title of the information [FR Doc. 2019–18161 Filed 8–22–19; 8:45 am] the NRC’s Public Document Room (PDR) collection: 10 CFR part 25, ‘‘Access BILLING CODE 7590–01–P reference staff at 1–800–397–4209, 301– Authorization.’’ 415–4737, or by email to pdr.resource@ 2. OMB approval number: 3150–0046. nrc.gov. The supporting statement and 3. Type of submission: Revision. NUCLEAR REGULATORY burden spreadsheet are available in 4. The form number, if applicable: COMMISSION ADAMS under Accession Nos.: Not applicable. ML19198A154 and ML19045A659, 5. How often the collection is required [NRC–2018–0272] respectively. or requested: On occasion. • NRC’s PDR: You may examine and 6. Who will be required or asked to Information Collection: Access purchase copies of public documents at respond: NRC-regulated facilities and Authorization the NRC’s PDR, Room O1–F21, One other organizations requiring access to AGENCY: Nuclear Regulatory White Flint North, 11555 Rockville NRC-classified information. Commission. Pike, Rockville, Maryland 20852. 7. The estimated number of annual • NRC’s Clearance Officer: A copy of responses: 383.8. ACTION: Notice of submission to the the collection of information and related 8. The estimated number of annual Office of Management and Budget; instructions may be obtained without respondents: 132 (78 licensees plus 54 request for comment. charge by contacting the NRC’s individuals reporting information that

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bears on continued their eligibility for obtained from Catherine F. I. Andrade at outside of an alternative trading system access authorization, access to classified (202) 336–8768, or via email at (‘‘ATS’’).7 All published data is derived information, or a sensitive position). [email protected]. directly from OTC transactions reported 9. The estimated number of hours Dated: August 20, 2019. to a FINRA equity trade reporting needed annually to comply with the Catherine Andrade, facility. FINRA does not charge a fee for information collection requirement or this data.8 Corporate Secretary, Overseas Private Currently, FINRA publishes weekly request: 188.6. Investment Corporation. 10. Abstract: NRC collects non-ATS OTC volume information [FR Doc. 2019–18265 Filed 8–21–19; 11:15 am] information on individuals in order to (number of trades and shares) by firm determine their eligibility for an NRC BILLING CODE 3210–01–P and by security on a two-week or four- access authorization for access to week delayed basis. Weekly security- classified information. NRC-regulated specific information for transactions in SECURITIES AND EXCHANGE facilities and other organization are NMS stocks in Tier 1 of the NMS Plan COMMISSION required to provide information to the to Address Extraordinary Market NRC when requested on the cleared [Release No. 34–86706; File No. SR–FINRA– Volatility (‘‘Tier 1 NMS stocks’’) is individual and maintain records to 2019–019] published on a two-week delayed basis, ensure that only individuals with the while information on the remaining adequate level of protection is provided Self-Regulatory Organizations; NMS stocks (‘‘Tier 2 NMS stocks’’) and access to NRC classified information Financial Industry Regulatory OTC Equity Securities is published on and material. Authority, Inc.; Order Approving a four-week delayed basis. FINRA also Proposed Rule Change To Expand publishes aggregate weekly non-ATS Dated at Rockville, Maryland, this 20th day OTC Equity Trading Volume Data volume totals by firm and category of of August, 2019. Published on FINRA’s Website security (Tier 1 NMS stocks, Tier 2 NMS For the Nuclear Regulatory Commission. stocks, and OTC Equity Securities) on August 19, 2019. David C. Cullison, the same timeframes, as well as NRC Clearance Officer, Office of the Chief I. Introduction aggregate non-ATS volume totals by Information Officer. On July 1, 2019, the Financial firm for all NMS stocks and OTC Equity [FR Doc. 2019–18227 Filed 8–22–19; 8:45 am] Industry Regulatory Authority, Inc. Securities, for each calendar month on 9 BILLING CODE 7590–01–P (‘‘FINRA’’) filed with the Securities and a one-month delayed basis. All data is Exchange Commission (‘‘Commission’’), published by firm on an attributed 10 pursuant to Section 19(b)(1) of the basis except that, for firms executing OVERSEAS PRIVATE INVESTMENT Securities Exchange Act of 1934 fewer than 200 non-ATS transactions CORPORATION (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a per day on average during the reporting period,11 FINRA combines and Sunshine Act Meeting proposed rule change to amend FINRA Rules 6110 and 6610 to expand the publishes the volume for these firms on summary firm data relating to over-the- an aggregate non-attributed basis TIME AND DATE: Wednesday, September identified in the published data as ‘‘De 11, 2019, 2 p.m. (OPEN Portion); 2:15 counter (‘‘OTC’’) equity trading that 12 FINRA publishes on its website. The Minimis Firms.’’ p.m. (CLOSED Portion). FINRA has proposed to expand, in proposed rule change was published for PLACE: Offices of the Corporation, two ways, the summary firm data comment in the Federal Register on July Twelfth Floor Board Room, 1100 New relating to non-ATS OTC equity trading 11, 2019.3 York Avenue NW, Washington, DC. The Commission received that FINRA publishes on its website. two comment letters in support of the First, FINRA would publish new STATUS: Meeting OPEN to the Public proposed rule change.4 This order from 2 p.m. to 2:15 p.m. Closed portion approves the proposed rule change. will commence at 2:15 p.m. (approx.) 144(a)(3). See FINRA Rule 6420(k); 17 CFR II. Description of the Proposal 230.144(a)(3). MATTERS TO BE CONSIDERED: 7 FINRA Rules 6110(b) and 6610(b) govern the 1. President’s Report Currently, FINRA publishes certain publication of information for OTC transactions 2. Tributes volume information for OTC executed outside of an ATS (‘‘non-ATS’’ volume 3. Minutes of the Open Session of the transactions in NMS stocks 5 and OTC data or information). FINRA Rules 6110(c) and 6 6610(c) separately govern the publication of trading June 12, 2019, Board of Directors Equity Securities, that are executed information for OTC transactions executed on Meeting ATSs. 1 FURTHER MATTERS TO BE CONSIDERED: 15 U.S.C. 78s(b)(1). 8 OTC transaction volume data published 2 (Closed to the Public 2:15 p.m.): 17 CFR 240.19b–4. pursuant to FINRA Rules 6110 and 6610 is available 3 See Securities Exchange Act Release No. 86315 at https://otctransparency.finra.org/ 1. Finance Project—India (July 5, 2019), 84 FR 33098 (July 11, 2019) otctransparency/. 2. Insurance Project—Barbados (‘‘Notice’’). 9 Monthly aggregated data are categorized by 3. Finance Project—Senegal 4 See letters to Vanessa Countryman, Secretary, NMS stocks and OTC Equity Securities, i.e., there 4. Finance Project—Argentina Commission from: Ray Ross, Chief Technology is no differentiation between Tier 1 NMS stocks and Officer, Clearpool Group (‘‘Clearpool’’), dated Tier 2 NMS stocks. 5. Finance Project—Argentina August 1, 2019 (‘‘Clearpool Letter’’); Stephen John 10 Non-ATS data is published at the firm level, 6. Finance Project—Argentina Berger, Managing Director, Global Head of aggregating each market participant identifier 7. Finance Project—Argentina Government & Regulatory Policy, Citadel Securities (‘‘MPID’’) used by a particular firm (but excluding 8. Finance Project—Argentina (‘‘Citadel’’), dated August 1, 2019 (‘‘Citadel Letter’’). any MPIDs used by a firm to report trades executed 9. Minutes of the Closed Session of the 5 ‘‘NMS stock’’ is defined in Rule 600(b)(47) of the on its ATS). Commission’s Regulation NMS. See 17 CFR 11 For a firm with multiple non-ATS MPIDs, the June 12, 2019, Board of Directors 242.600(b)(47). total volume across all its MPIDs is combined for Meeting 6 ‘‘OTC Equity Security’’ means any equity purposes of determining whether the de minimis 10. Reports security that is not an NMS stock, other than a threshold has been met. 11. Pending Projects Restricted Equity Security. See FINRA Rule 6420(f). 12 There is no parallel de minimis exception for A ‘‘Restricted Equity Security’’ means any equity ATS transactions under FINRA Rules 6110(c) and CONTACT PERSON FOR MORE INFORMATION: security that meets the definition of ‘‘restricted 6610(c). Therefore, all ATS volume data is currently Information on the meeting may be security’’ as contained in Securities Act Rule published on an attributed basis.

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monthly aggregate block-size trading FINRA has proposed to expand the i.e., FINRA is not proposing any de data for non-ATS OTC trades in NMS block-size trading data that it publishes minimis exception for non-ATS block- stocks, on the same terms as FINRA on its website to include monthly size data. FINRA also would calculate currently publishes aggregate block-size aggregate block-size trading data for all and display the average trade size and trading data for trades in NMS stocks OTC trades in NMS stocks, regardless of each firm’s rank as well as ‘‘Firm Block occurring on ATSs. Second, FINRA whether they are ATS or non-ATS Market Share’’ (i.e., the proportion of 15 would eliminate the current de minimis trades. The new block-size data for each firm’s block-size trading volume in exception for publication of aggregate non-ATS OTC trades would be relation to total block-size trading by all non-ATS trading volume across all NMS published on the same terms as block- firms) and ‘‘Firm Block Business Share’’ size data is currently published for ATS stocks and OTC Equity Securities, and (i.e., the proportion of a particular firm’s trades, and FINRA would not charge a publish each firm’s aggregate non-ATS overall trading volume that was done as fee for the new data. Specifically, volume on an attributed basis. Each block-size trades) and rankings of those component of the proposed rule change proposed paragraph (b)(3) of FINRA Rule 6110 provides that non-ATS block- metrics for each of the above is addressed below. 17 size data would be published in categories. Non-ATS Block-Size Trading Data aggregate across all NMS stocks (i.e., Elimination of the De Minimis Pursuant to its Rule 6110(c)(2), FINRA there would be no security-by-security Exception currently publishes monthly block data), would be for a time period information on block-size trades in all of one month of trading, and would be FINRA has proposed to eliminate the NMS stocks occurring on ATSs. Data published no earlier than one month current de minimis exception for regarding block-size trades on ATSs is following the end of the month for publication of aggregate non-ATS OTC aggregated across all NMS stocks (i.e., which trading was aggregated. All trading volume, and instead publish on there is no security-by-security block published data would be derived an attributed basis each firm’s aggregate data), are for a time period of one month directly from OTC trades reported to a non-ATS OTC volume (number of trades of trading, and are published no earlier FINRA trade reporting facility and and shares) on a weekly or monthly than one month following the end of the would not create any new requirements basis, as applicable.18 month for which trading was for FINRA members. aggregated. Pursuant to proposed FINRA Rule FINRA also proposed several other FINRA currently publishes 6110(b)(3), FINRA would publish the technical, non-substantive, and information on block-size ATS trades in new non-ATS block-size data with conforming changes to the current rule NMS stocks using share-based elements to be determined from time to text.19 thresholds, dollar-based thresholds, and time by FINRA in its discretion, as FINRA has stated that it will thresholds that include both shares and stated in a Regulatory Notice or other announce the effective date of the dollar amount as follows: equivalent publication. As with current proposed rule change in a Regulatory • 10,000 or more shares; block-size data regarding ATS OTC Notice following a Commission • trades, non-ATS block-size data will be $200,000 or more in dollar value; approval, and the effective date of the • published using the same share-based, 10,000 or more shares and $200,000 proposed rule change will be no earlier or more in dollar value; dollar-based, and combination share- • and dollar-based thresholds used for than October 1, 2019, and no later than 2,000 to 9,999 shares; 20 • $100,000 to $199,999 in dollar ATS block-size data, as described above. March 31, 2020. FINRA anticipates value; and For each category, FINRA would that it will begin publication of data in • 2,000 to 9,999 shares and $100,000 publish monthly trade count and accordance with the proposed rule to $199,999 in dollar value.13 volume information for each firm, on an change in the fourth quarter of 2019.21 For each of these categories, FINRA attributed basis, aggregated across all publishes monthly trade count and NMS stocks with no differentiation 17 In the Notice, FINRA stated that it will volume information for each ATS, on an between Tier 1 NMS stocks and Tier 2 announce any changes to these elements in advance 16 in a Regulatory Notice or similar publication. attributed basis, aggregated across all NMS stocks. Each firm that engages in 18 However, FINRA has not proposed to eliminate NMS stocks with no differentiation block-size non-ATS trading of NMS the de minimis exception for purposes of the between Tier 1 NMS stocks and Tier 2 stocks would be separately identified, security-specific non-ATS OTC volume data under NMS stocks. FINRA also calculates and FINRA Rules 6110(b)(2)(C) and 6610(b)(2)(C). displays the average trade size and each 15 In developing its proposal to publish non-ATS Therefore, if a firm averages fewer than 200 non- ATS OTC transactions per day in a given security ATS’s rank as well as ‘‘ATS Block block-size data, FINRA discussed the initiative with a number of its industry advisory committees, during the reporting period, FINRA would continue Market Share’’ (i.e., the proportion of informally consulted a number of firms, and to aggregate the firm’s volume in that security with each ATS’s block-size trading volume in solicited written comment. FINRA stated that firms that of similarly situated firms, and there would relation to total block-size trading by all were generally supportive of publishing non-ATS continue to be a De Minimis Firms category for published security-by-security volume data. ATSs) and ‘‘ATS Block Business Share’’ block-size data, which would provide enhanced transparency into the OTC market as a complement 19 FINRA proposed to amend Rules 6110(b)(1)(A) (i.e., the proportion of a particular to the currently published ATS block-size data. See and (B) and 6610(b)(1)(A) to clarify that those ATS’s overall trading volume that was Notice, 84 FR at 33099. FINRA also stated that provisions apply to the publication of aggregate done as block-size trades) and rankings several firms raised potential information leakage weekly trading information, which will conform to of those metrics for each of the above concerns involved with publishing new block-size language in current Rules 6110(c) and 6610(c). FINRA further proposed to amend Rules 14 data, but indicated that such concerns would be categories. mitigated by publishing data on an aggregated basis, 6110(b)(2)(B) and 6610(b)(2)(B) (as re-designated by rather than security-by-security, and by delaying the proposed rule change) to clarify that the 13 See FINRA Regulatory Notice 16–14 (April publication. See id. remaining de minimis exceptions under those 2016) (Alternative Trading Systems). 16 FINRA has not proposed at this time to publish provisions apply to trading information by security. 14 ATS block-size data can be viewed at https:// non-ATS block-size data for trading in OTC Equity Finally, FINRA proposed to amend the final otctransparency.finra.org/otctransparency/ Securities. In the Notice, FINRA stated that it will sentence of Rule 6610(b)(3) to correct the cross- AtsBlocks. The data may also be directly continue to assess whether block-size trading data reference to the definition of ‘‘ATS Trading downloaded through the OTC Transparency Data should be expanded to include trades in OTC Information.’’ web page, https://otctransparency.finra.org/ Equity Securities or a subset thereof. See Notice, 84 20 See Notice, 84 FR at 33100. otctransparency/AtsBlocksDownload. FR at 33099, n. 15. 21 See id.

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III. Discussion and Commission aggregated basis.28 The Commission For the Commission, by the Division of Findings approved the proposed rule change Trading and Markets, pursuant to delegated 32 because publishing this data, even authority. After careful consideration, the Jill M. Peterson, Commission finds that the proposed though not to the same degree of Assistant Secretary. rule change is consistent with the granularity as ATS OTC trade data, requirements of the Act and the rules would facilitate better understanding of [FR Doc. 2019–18167 Filed 8–22–19; 8:45 am] and regulations thereunder applicable to the OTC equity market.29 BILLING CODE 8011–01–P a national securities association.22 In FINRA is now proposing to apply to particular, the Commission finds that non-ATS OTC trade data more of the SECURITIES AND EXCHANGE the proposed rule change is consistent publication protocols that it currently COMMISSION with Section 15A(b)(6) of the Act,23 applies to ATS OTC trade data. which requires, among other things, that Specifically, FINRA will publish new [Release No. 34–86705; File No. SR– FINRA rules be designed to prevent monthly aggregate block-size trading NASDAQ–2019–061] fraudulent and manipulative acts and data for non-ATS OTC trades in NMS practices, to promote just and equitable Self-Regulatory Organizations; The stocks, on the same terms as FINRA Nasdaq Stock Market LLC; Notice of principles of trade, and, in general, to currently publishes aggregate block-size protect investors and the public interest. Filing of Proposed Rule Change trading data for ATS trades in NMS Relating to the Nasdaq Official Closing The Commission previously found stocks. Second, FINRA will eliminate Price for Nasdaq-Listed Exchange- that the earliest iteration of FINRA’s the de minimis exception for Traded Products publication protocols for ATS OTC publication of aggregate non-ATS trade data were consistent with the trading volume across all NMS stocks August 19, 2019. 24 Act. Several commenters on that and OTC Equity Securities, and publish Pursuant to Section 19(b)(1) of the initial proposal urged FINRA to broaden each firm’s aggregate non-ATS volume Securities Exchange Act of 1934 its publication protocols to include non- on an attributed basis. The Commission (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 ATS OTC trading centers, not only believes that the proposal will enhance notice is hereby given that on August 8, ATSs. FINRA responded that ‘‘it transparency in the OTC equity market 2019, The Nasdaq Stock Market LLC considered various alternatives and by making additional trading volume (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the concluded that ATS trade information data available on FINRA’s website in a Securities and Exchange Commission was an appropriate first step toward (‘‘Commission’’) the proposed rule increased transparency in the off- manner reasonably designed to avoid adverse market impact, and without change as described in Items I and II exchange OTC market. FINRA stated below, which Items have been prepared imposing any new requirements, on further that it would consider additional by the Exchange. The Commission is FINRA members. Therefore, the steps, including those suggested by the publishing this notice to solicit 25 Commission finds that the proposal is commenters, in the future.’’ comments on the proposed rule change consistent with the Act and the rules Subsequently, in 2015, FINRA from interested persons. proposed to expand transparency of and regulations thereunder applicable to OTC equity trading data by publishing a national securities association. The I. Self-Regulatory Organization’s certain information regarding non-ATS Commission notes that it received no Statement of the Terms of Substance of OTC trading.26 At that time, however, comments objecting to the proposal.30 the Proposed Rule Change FINRA did not believe that publishing IV. Conclusion The Exchange proposes a rule change volume information for each firm that regarding how the Nasdaq Official executed only a small number of trades It is therefore ordered, pursuant to Closing Price (‘‘NOCP’’) will be or shares in any given period would Section 19(b)(2) of the Act,31 that the determined for a Nasdaq-listed security provide meaningful information to the proposed rule change (SR–FINRA– that is an exchange-traded product (as marketplace.27 Therefore, FINRA 2019–019) is approved. defined herein). proposed to combine volume from all The text of the proposed rule change members that did not meet a specified 28 See id. is available on the Exchange’s website at minimum threshold and publish such 29 See Securities Exchange Act Release No. 76078 http://nasdaq.cchwallstreet.com, at the information for those members on an (October 5, 2015), 80 FR 61246, 61247–49 (October principal office of the Exchange, and at 9, 2015) (Order Approving SR–FINRA–2015–020). the Commission’s Public Reference 30 Two commenters generally supported the 22 In approving this proposal, the Commission has Room. proposal while suggesting ways to further expand considered the proposed rule’s impact on publication of non-ATS OTC trade data. Clearpool efficiency, competition, and capital formation. See II. Self-Regulatory Organization’s suggested that FINRA eliminate the de minimis 15 U.S.C. 78c(f). Statement of the Purpose of, and exception for purposes of the security-specific non- 23 15 U.S.C. 78o–3(b)(6). ATS volume data as well as separately identifying Statutory Basis for, the Proposed Rule 24 See Securities Exchange Act Release No. 71341 a firm’s volume of trading on a single-dealer Change (January 17, 2014), 79 FR 4213, 4217 (January 24, platform. See Clearpool Letter at 2. Citadel 2014) (Order Approving SR–FINRA–2013–042). suggested that FINRA separate the monthly In its filing with the Commission, the FINRA subsequently expanded the scope of the aggregate block-size trading data into ETF and non- Exchange included statements ATS OTC trade data that it publishes on its website. ETF categories to maximize the granularity and concerning the purpose of and basis for See Securities Exchange Act Release No. 76931 utility of the data. See Citadel Letter at 1. In the proposed rule change and discussed (January 19, 2016), 81 FR 4076 (January 25, 2016) response to these comments, FINRA stated that it (SR–FINRA–2016–002) (immediate effectiveness of ‘‘continue[s] to consider further enhancements to any comments it received on the proposed rule change relating to ATS volume and the OTC volume information published on our proposed rule change. The text of these trading information). website and we would consider these suggestions statements may be examined at the 25 Order Approving SR–FINRA–2013–042, 79 FR as part of potential future changes, but we would places specified in Item IV below. The at 4215 (citation omitted). not plan to include them in this filing.’’ Email to 26 See Securities Exchange Act Release No. 75356 David Michehl, Special Counsel, Commission, from (July 2, 2015), 80 FR 39463 (July 9, 2015) (Notice Robert McNamee, Assistant General Counsel, 32 17 CFR 200.30–3(a)(12). of SR–FINRA–2015–020). FINRA (dated August 8, 2019). 1 15 U.S.C. 78s(b)(1). 27 See id., 80 FR at 39464. 31 15 U.S.C. 78s(b)(2). 2 17 CFR 240.19b–4.

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Exchange has prepared summaries, set Rule’’),5 as well as was approved for If a Nasdaq-listed security that is an ETP forth in sections A, B, and C below, of Bats BZX Exchange, Inc.6 has a Closing Cross, it will continue to the most significant aspects of such Currently, the NOCP is derived from be priced using the current process for statements. the Closing Cross 7 on Nasdaq if the calculating the closing price. However, security has a closing cross and reflects if a Nasdaq-listed security that is an ETP A. Self-Regulatory Organization’s actual sale prices at one of the most does not have a Closing Cross, then the Statement of the Purpose of, and liquid times of the day.8 The Exchange Exchange believes that a time-weighted Statutory Basis for, the Proposed Rule notes that it is not proposing to make average based on the midpoint (‘‘T– Change changes to the process for determining WAM’’) of the NBBO 10 leading into the the price level at which the Closing close is likely to be more indicative of 1. Purpose Cross will occur. Nasdaq believes its the current value of the security. Nasdaq Nasdaq Rule 4754(b) details the Closing Cross has proven to be a believes the midpoint of current processing of the Nasdaq Closing Cross, valuable pricing tool for issuers, traders, quotations is more reflective of the including how the Exchange determines and investors alike; and Nasdaq current value of the ETP than a continually works to enhance the the NOCP. The Exchange proposes to potentially stale last sale. experience for those that rely upon it. The T–WAM price will be a time- amend Nasdaq Rule 4754 to amend how The Exchange proposes to amend 3 weighted average midpoint value the NOCP will be determined for an Nasdaq Rule 4754(b)(4) to amend how calculation 11 that uses eligible quotes Exchange-listed security that is an the NOCP for a Nasdaq-listed security during the time period 3:58:00 p.m.– exchange-traded product (‘‘ETP’’) if the that is an ETP will be determined if the 3:59:55 p.m. based on quotes observed Exchange does not conduct a closing security does not have a closing cross. each second.12 For example, NBBO = cross (‘‘Closing Cross’’).4 ETP for Thinly-traded ETPs are less likely to 19.99 × 20.01 (midpoint = $20.00) purposes of the proposed rule change have a Closing Cross, which can result starting at 3:58:00 p.m. through 3:58:59 means a series of Portfolio Depository in a closing price that is based on a stale p.m. and then the NBBO is updated to Receipts, Index Fund Shares, Managed price that is no longer reflective of the 19.95 × 19.97 (midpoint = $19.96) from Fund Shares, or Trust Issued Receipts value of the security. Specifically, if an 3:59:00 p.m. through 3:59:55 p.m., the (as defined in Nasdaq Rules 5705(a) ETP is thinly-traded it is currently T–WAM calculation will be $19.98 5705(b), 5735, and 5720, respectively), possible that the NOCP for it will be (19.9807). securities linked to the performance of based on a Nasdaq Last Sale price that In cases where the T–WAM is indexes and commodities (including may not necessarily reflect the current reflected as the ETP’s NOCP, the T– currencies) (as defined in Nasdaq Rule value of the security. Providing an WAM calculation will only use eligible 5710), Index-Linked Exchangeable updated price aligned with the current quotes that meet the following Notes, Equity Gold Shares, Trust market value based on quotations in an validation logic: An eligible quote is Certificates, Commodity-Based Trust ETP that is thinly-traded will provide defined as a quote whose spread is no investors and issuers with a more greater than a value of 10% of the Shares, Currency Trust Shares, accurate price to mark performance of midpoint price. All quoted spreads Commodity Index Trust Shares, their funds and portfolios. within the T–WAM’s stated time period Commodity Futures Trust Shares, Nasdaq Rule 4754(b) outlines the in proposed Nasdaq Rule Partnership Units, Trust Units, Managed process for determining the price level 4754(b)(4)(A)(i) that are greater than Trust Securities, or Currency Warrants at which the Closing Cross will occur.9 10% of the midpoint would be excluded (as defined in Rule 5711(a)–(k)). from the T–WAM calculation. For The proposed functionality in this 5 See Securities Exchange Act Release No. 82907 example: If the NBBO = 19.99 × 20.01 filing is similar to functionality that has (March 20, 2018), 83 FR 12980 (March 26, 2018) (midpoint = $20) validation logic would (SR–NYSEArca–2018–08) (order approving already been approved by the proposed changes to Arca Rule 1.1(ll) related to allow a maximum quote width up to $2 Commission and is operational on determining an Official Closing Price). to be used as part of the calculation NYSE Arca, Inc. (‘‘Arca’’) (the ‘‘Arca 6 See Securities Exchange Act Release No. 84738 (Dec. 6, 2018), 83 FR 63932 (Dec. 12, 2018) (SR– 10 As defined in Nasdaq Rule 4701(j), the term CboeBZX–2018–079) (order approving proposed ‘‘NBBO’’ shall mean the ‘‘National Best Bid and 3 As set forth in Nasdaq Rule 4754(b)(4), the changes to BZX Rule 11.23(c)(2)(B) related to how National Best Offer’’. NOCP will be the Closing Cross price for stocks that it would determine the BZX Official Closing Price ). 11 The T–WAM calculation will take the midpoint participate in the Closing Cross. 7 All orders executed in the Closing Cross will be of the NBBO on a 1-second basis and weight 4 The proposed rule change does not apply to executed at the Closing Cross price, trade reported according to time-frequency during the time period Nasdaq Rule 5745 Exchange-Traded Managed Fund anonymously, and disseminated via the 3:58:00 p.m.–3:59:55 p.m. Shares (‘‘NextShares’’) or corporate securities. consolidated tape. The Closing Cross price will be 12 Nasdaq’s current process accepts limit on close Additionally, it is unnecessary to apply this rule the NOCP for stocks that participate in the Closing (‘‘LOC’’) orders for participation in the Closing change to NextShares because its’ reference trading Cross. Fifteen minutes after the close of trading, Cross until 3:58:00 p.m., this is the last opportunity price is reset to 100 every day for quoting purposes Nasdaq will disseminate via the network processor for market participants to enter an on-close order around which markets are made. The actual NAV a trade message setting the NOCP as the official type that can contribute to price discovery. In price does not correspond to this reference price Consolidated Last Sale price in each Nasdaq-listed instances when there is no Closing Cross at 4:00:00 and therefore the midpoints of the reference price ETP in which one round lot or more is executed in p.m., internal research by the Exchange has shown are not applicable in determining a more accurate the Closing Cross where the closing price differs that using the T–WAM of the time period between fair value of the basket. Nasdaq is not proposing from the Consolidated Last Sale price. 3:58:00 p.m.–3:59:55 p.m. results in a price that this change for corporate securities because unlike 8 The Closing Cross is designed to gather the reflects a fair current valuation. Nasdaq’s decision ETPs they do not have a known NAV along with maximum liquidity available for execution at the to use this time period included an evaluation of an arbitrage component that allows for convergence close of trading, and to maximize the number of the T–WAM calculation price compared against the in price and keeps the prices in line. Corporate shares executed at a single price at the close of the historical data of the prior day’s actual ETP Closing securities are priced based upon supply demand trading day. The Closing Cross is made highly Cross prices. Nasdaq’s internal research data factors at moments in time, which result in transparent to all investors through the widespread demonstrated that the calculated T–WAM price was executed transactions. These transactions are dissemination of stock-by-stock information about reflective of the price that was similarly calculated generally recognized as the most relevant current the Closing Cross, including the potential price and by the Closing Cross. Nasdaq’s analysis provided pricing valuation. Feedback from industry size of the Closing Cross. confidence that for thinly-traded ETPs the 3:58:00 participants has not shown any desire to alter 9 The Exchange notes that it is not proposing to p.m.–3:59:55 p.m. time period for the T–WAM, will closing price valuation processes for commons make changes to the process for determining the result in an improved valuation methodology stocks. price level at which the Closing Cross will occur. versus using the Nasdaq Last Sale.

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($20.00*10% = $2). If the NBBO was and a national market system and, in because if they are thinly-traded, the 17.00 × 23.00 (midpoint = $20.00) the general, to protect investors and the price of the Nasdaq Last Sale trade that midpoint would not be used in the T– public interest. occurred earlier in a trading day or even WAM calculation because it violates the The Exchange believes that the from a prior trading day may no longer maximum quote width ($20.00*10% = proposed rule change would remove be reflective of the value of such $2). The T–WAM also will exclude impediments to and perfect the product, which should be priced crossed NBBO markets. The Exchange mechanism of a free and open market relative to the value of the components believes that the proposed methodology and a national market system because it of such ETP. As such, the Exchange will result in a NOCP that is more would provide for a method of believes recent quoting activity likely reflective of the current market value of determining the NOCP in an Exchange- will be more reflective of the current the ETP on that trading day. listed security that is an ETP if there is value of the ETP. Furthermore, the If there are no eligible quotes to no Closing Cross, as well add a Exchange is proposing to use the T– determine a T–WAM within the time definition of ‘‘Exchange-Traded WAM of the NBBO to measure such period or if the ETP is halted, then Product’’ to the rule that will aid market quoting activity in order to avoid overly Nasdaq will use the Consolidated Last participants in understanding the rule.15 weighting a potentially stale quote that Sale price prior to 4:00:00 p.m. as the The Exchange believes that the may occur leading into the close. NOCP. For an ETP that is already listed proposed methodology provides for a Currently, the NOCP is derived from on Nasdaq and does not have any more up-to date indication of the value the Closing Cross on Nasdaq if the eligible quotes for the T–WAM of such ETP if there have not been security has a closing cross and reflects methodology or any Consolidated Last Nasdaq last sale trades leading in to the actual sale prices. If a Nasdaq-listed Sale prices that day, the NOCP will be close of trading. Specifically, this is security that is an ETP has a Closing the prior day’s NOCP. For an ETP that consistent with the Act because when Cross, it will continue to be priced using has transferred its listing to Nasdaq and there is no Closing Cross at 4:00:00 p.m., the current process for calculating the does not have any eligible quotes for the the Exchange’s internal research has closing price. Under the proposed rule T–WAM methodology or any shown that using the T–WAM of the change, if a Nasdaq-listed security that Consolidated Last Sale prices that day, time period between 3:58:00 p.m.– is an ETP does not have a Closing Cross, the NOCP will be the prior day’s closing 3:59:55 p.m. results in a price that then the T–WAM of the NBBO will be price as disseminated by the primary reflects a fair current valuation and is used as the NOCP. If there are no listing market that previously listed it. reflective of the price that was similarly eligible quotes to determine a T–WAM For an ETP that is a new listing to calculated by the Closing Cross.16 This within the time period or if the ETP is Nasdaq and does not have any eligible results in an improved valuation halted, then Nasdaq will use the quotes for the T–WAM methodology or methodology versus using the Nasdaq Consolidated Last Sale price prior to any Consolidated Last Sale prices that Last Sale to the benefit of market 4:00:00 p.m. as the NOCP. For an ETP day, the NOCP will not be disseminated. participants since it will provide a that is already listed on Nasdaq and In order to implement these proposed closing price that more accurately does not have any eligible quotes for the changes, the Exchange is proposing to reflects the most recent and reliable T–WAM methodology or any amend Nasdaq Rule 4754(b)(4) by market information possible. Consolidated Last Sale prices that day, adding subsection (A) to this rule. The Exchange further believes that the NOCP will be the prior day’s NOCP Nasdaq Rule 4754(b)(4), as amended, since the proposed T–WAM .For an ETP that has transferred its will define the term ‘‘Exchange-Traded methodology, described herein, will listing to Nasdaq and does not have any Product’’ and provide that in the event result in a NOCP that is more reflective eligible quotes for the T–WAM that a Nasdaq listed ETP does not have of the current market value of the ETP methodology or any Consolidated Last a closing cross then the T–WAM of the on that trading day and it will serve to Sale prices that day, the NOCP will be NBBO will be used. remove impediments to and perfect the the prior day’s closing price as mechanism of a free and open market disseminated by the primary listing Implementation and a national market system because it market that previously listed it. For an The Exchange will implement the will provide for a more robust ETP that is a new listing to Nasdaq and proposed rule change for determining mechanism to determine the value of an does not have any eligible quotes for the the NOCP as soon as is practicable after affected ETP for purposes of T–WAM methodology or any the approval date of this proposed rule determining a NOCP. Consolidated Last Sale prices that day, change, which may be as early as during The Exchange also believes that the the NOCP will not be disseminated. the third quarter of 2019, and will proposed methodology for determining The proposed functionality in this announce the implementation date via a NOCP would be appropriate for ETPs filing is similar to functionality that has Nasdaq Equity Trader Alert. already been approved by the 15 The definition of ‘‘Exchange-Traded Product’’ Commission and is operational on other 2. Statutory Basis excludes NextShares and does not apply to exchanges. The Exchange believes that The Exchange believes that its common stock. Specifically, ETP for purposes of the the proposed pricing methodology will proposed rule change means a series of Portfolio promote just and equitable principles of proposal is consistent with Section 6(b) Depository Receipts, Index Fund Shares, Managed of the Act,13 in general, and furthers the Fund Shares, or Trust Issued Receipts (as defined trade, remove impediments to, and objectives of Section 6(b)(5) of the Act,14 in Nasdaq Rules 5705(a) 5705(b), 5735, and 5720, perfect the mechanisms of, a free and in particular, because it is designed to respectively), securities linked to the performance open market and a national market of indexes and commodities (including currencies) system and, in general, protect investors prevent fraudulent and manipulative (as defined in Nasdaq Rule 5710), Index-Linked acts and practices, to promote just and Exchangeable Notes, Equity Gold Shares, Trust and the public interest by enhancing equitable principles of trade, to remove Certificates, Commodity-Based Trust Shares, how the NOCP will be determined for impediments to, and perfect the Currency Trust Shares, Commodity Index Trust a Nasdaq-listed security that is an ETP Shares, Commodity Futures Trust Shares, and will be to the benefit of issuers, mechanisms of, a free and open market Partnership Units, Trust Units, Managed Trust Securities, or Currency Warrants (as defined in Rule traders, and investors alike. 13 15 U.S.C. 78f(b). 5711(a)–(k)). For the above reasons, the Exchange 14 15 U.S.C. 78f(b)(5). 16 See supra footnote 12. believes that the proposal is consistent

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with the requirements of Section 6(b)(5) subject line if email is used. To help the Incident Period: 03/11/2019 through of the Act. Commission process and review your 04/16/2019. comments more efficiently, please use B. Self-Regulatory Organization’s DATES: Issued on 08/16/2019. only one method. The Commission will Statement on Burden on Competition post all comments on the Commission’s Physical Loan Application Deadline The Exchange does not believe that internet website (http://www.sec.gov/ Date: 07/19/2019. the proposed rule change will impose rules/sro.shtml). Copies of the Economic Injury (EIDL) Loan any burden on competition not submission, all subsequent Application Deadline Date: 02/20/2020. necessary or appropriate in furtherance amendments, all written statements of the purposes of the Act, as amended. with respect to the proposed rule ADDRESSES: Submit completed loan The proposed rule change is consistent change that are filed with the applications to: U.S. Small Business with the rules of the other exchanges Commission, and all written Administration, Processing and and is designed to provide for how the communications relating to the Disbursement Center, 14925 Kingsport Exchange would determine the NOCP proposed rule change between the Road, Fort Worth, TX 76155. for an Exchange-listed security that is an Commission and any person, other than FOR FURTHER INFORMATION CONTACT: A. ETP if there is no Closing Cross, which those that may be withheld from the Escobar, Office of Disaster Assistance, will help it better compete as a listing public in accordance with the U.S. Small Business Administration, venue. provisions of 5 U.S.C. 552, will be 409 3rd Street SW, Suite 6050, C. Self-Regulatory Organization’s available for website viewing and Washington, DC 20416, (202) 205–6734. Statement on Comments on the printing in the Commission’s Public Reference Room, 100 F Street NE, SUPPLEMENTARY INFORMATION: The notice Proposed Rule Change Received From of the President’s major disaster Members, Participants, or Others Washington, DC 20549, on official business days between the hours of 10 declaration for Private Non-Profit No written comments were either a.m. and 3 p.m. Copies of the filing also organizations in the State of Missouri, solicited or received. will be available for inspection and dated 05/20/2019, is hereby amended to include the following areas as adversely III. Date of Effectiveness of the copying at the principal office of the affected by the disaster. Proposed Rule Change and Timing for Exchange. All comments received will Commission Action be posted without change. Persons Primary Counties: Cape Girardeau, Pike, submitting comments are cautioned that Scott. Within 45 days of the date of we do not redact or edit personal publication of this notice in the Federal identifying information from comment All other information in the original Register or within such longer period submissions. You should submit only declaration remains unchanged. up to 90 days (i) as the Commission may information that you wish to make (Catalog of Federal Domestic Assistance designate if it finds such longer period available publicly. All submissions Number 59008) to be appropriate and publishes its should refer to File Number SR– reasons for so finding or (ii) as to which NASDAQ–2019–061, and should be James Rivera, the self-regulatory organization submitted on or before September 13, Associate Administrator for Disaster consents, the Commission will: 2019. Assistance. (A) By order approve or disapprove [FR Doc. 2019–18218 Filed 8–22–19; 8:45 am] For the Commission, by the Division of the proposed rule change, or BILLING CODE 8026–03–P (B) institute proceedings to determine Trading and Markets, pursuant to delegated 17 whether the proposed rule change authority. should be disapproved. Jill M. Peterson, SMALL BUSINESS ADMINISTRATION Assistant Secretary. IV. Solicitation of Comments [FR Doc. 2019–18166 Filed 8–22–19; 8:45 am] Surrender of License of Small Interested persons are invited to BILLING CODE 8011–01–P Business Investment Company submit written data, views, and arguments concerning the foregoing, Pursuant to the authority granted to including whether the proposed rule SMALL BUSINESS ADMINISTRATION the United States Small Business change is consistent with the Act. Administration under the Small Comments may be submitted by any of [Disaster Declaration # 15967 and #15968; Business Investment Act of 1958, as Missouri Disaster Number MO–00095] the following methods: amended, under Section 309 of the Act and Section 107.1900 of the Small Electronic Comments Presidential Declaration Amendment of a Major Disaster for Public Assistance Business Administration Rules and • Use the Commission’s internet Only for the State of Missouri Regulations (13 CFR 107.1900) to comment form (http://www.sec.gov/ function as a small business investment rules/sro.shtml); or AGENCY: U.S. Small Business company under the Small Business • Send an email to rule-comments@ Administration. Investment Company License No. 06/ sec.gov. Please include File Number SR– ACTION: Amendment 1. 06–0341 issued to Parallel Investment NASDAQ–2019–061 on the subject line. Opportunity Partners II, LP, said license SUMMARY: Paper Comments This is an amendment of the is hereby declared null and void. Presidential declaration of a major United States Small Business Administration • Send paper comments in triplicate disaster for Public Assistance Only for to Secretary, Securities and Exchange the State of MISSOURI (FEMA–4435– Dated: August 15, 2019. Commission, 100 F Street NE, DR), dated 05/20/2019. A. Joseph Shepard, Washington, DC 20549–1090. Incident: Severe Storms, Straight-line Associate Administrator for Investment and All submissions should refer to File Winds and Flooding. Innovation. Number SR–NASDAQ–2019–061. This [FR Doc. 2019–18222 Filed 8–22–19; 8:45 am] file number should be included on the 17 17 CFR 200.30–3(a)(12). BILLING CODE P

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SMALL BUSINESS ADMINISTRATION Regulations (13 CFR 107.1900) to subsidiary of NSR, that connects to the function as a small business investment south end of the CLRA Line. The CLRA [Disaster Declaration #16039 and #16040; company under the Small Business Line, the NSR Line, and the CSXT Line Oklahoma Disaster Number OK–00131] Investment Company License No. 01/ all are located in Talladega County, Ala. Presidential Declaration Amendment of 01–0001 issued to BancBoston Ventures, The earliest this transaction may be a Major Disaster for Public Assistance Incorporated said license is hereby consummated is September 6, 2019, the Only for the State of Oklahoma declared null and void. effective date of the exemption (30 days United States Small Business after the verified notice was filed). AGENCY: U.S. Small Business Administration. Applicants state that they will continue in control of RJAL upon Administration. Dated: July 10, 2019. ACTION: Amendment 1. RJAL’s becoming a Class III rail carrier, A. Joseph Shepard, while remaining in control of 14 other Associate Administrator, Office of Investment SUMMARY: Class III rail carriers, including two non- This is an amendment of the and Innovation. Presidential declaration of a major operating rail carriers, collectively disaster for Public Assistance Only for [FR Doc. 2019–18221 Filed 8–22–19; 8:45 am] operating in 10 states. For a complete the State of Oklahoma (FEMA–4453– BILLING CODE 8025–01–P list of these rail carriers, see RJAL’s DR), dated 07/12/2019. notice of exemption filed August 7, Incident: Severe Storms, Tornadoes, 2019. The notice is available at Straight-line Winds, and Flooding. SURFACE TRANSPORTATION BOARD www.stb.gov. Incident Period: 04/30/2019 through [Docket No. FD 36331] Applicants represent that: (1) RJAL 05/01/2019. and the railroads under Applicants’ ownership and control would not DATES: Issued on 08/16/2019. R. J. Corman Railroad Group, LLC and connect with each other or any other Physical Loan Application Deadline R. J. Corman Railroad Company, railroad in the corporate family; (2) the Date: 09/10/2019. LLC—Continuance in Control continuance in control is not part of a Economic Injury (EIDL) Loan Exemption—R. J. Corman Railroad series of anticipated transactions that Application Deadline Date: 04/13/2020. Company/Childersburg Line, LLC would connect the carriers with each ADDRESSES: Submit completed loan R. J. Corman Railroad Group, LLC, a other or any railroad in their corporate applications to: U.S. Small Business noncarrier, and its wholly owned family; and (3) the transaction does not Administration, Processing and subsidiary, R. J. Corman Railroad involve a Class I carrier. The proposed Disbursement Center, 14925 Kingsport Company, LLC (RJCR) (collectively, transaction is, therefore, exempt from Road, Fort Worth, TX 76155. Applicants), have filed a verified notice the prior approval requirements of 49 FOR FURTHER INFORMATION CONTACT: A. of exemption pursuant to 49 CFR U.S.C. 11323. See 49 CFR 1180.2(d)(2). Escobar, Office of Disaster Assistance, 1180.2(d)(2) to continue in control of R. Under 49 U.S.C. 10502(g), the Board U.S. Small Business Administration, J. Corman Railroad Company/ may not use its exemption authority to 409 3rd Street SW, Suite 6050, Childersburg Line (RJAL) (currently a relieve a rail carrier of its statutory Washington, DC 20416, (202) 205–6734. noncarrier owned and controlled by obligation to protect the interests of its SUPPLEMENTARY INFORMATION: The notice Applicants) upon RJAL’s becoming a employees. However, 49 U.S.C. 11326(c) of the President’s major disaster Class III rail carrier. does not provide for labor protection for This transaction is related to a declaration for Private Non-Profit transactions under 49 U.S.C. 11324 and concurrently filed verified notice of organizations in the State of Oklahoma, 11325 that involve only Class III rail exemption in R. J. Corman Railroad dated 07/12/2019, is hereby amended to carriers. Accordingly, the Board may not Company/Childersburg Line, LLC— include the following areas as adversely impose labor protective conditions here, Change in Operators, Lease & Operation affected by the disaster. because all of the carriers involved are Exemption with Interchange Primary Counties: Okfuskee. Class III carriers. Commitment—City of Childersburg If the notice contains false or All other information in the original Local Redevelopment Authority, Docket misleading information, the exemption declaration remains unchanged. No. FD 36330. In that proceeding, RJAL is void ab initio. Petitions to revoke the (Catalog of Federal Domestic Assistance seeks an exemption under 49 CFR exemption under 49 U.S.C. 10502(d) Number 59008) 1150.31 to: (1) Change operators and may be filed at any time. The filing of assume the lease and operation of James Rivera, a petition to revoke will not approximately 10.30 miles of rail line automatically stay the effectiveness of Associate Administrator for Disaster and related industrial track located at Assistance. the exemption. Stay petitions must be the former Alabama Army Ammunition filed no later than August 30, 2019 (at [FR Doc. 2019–18217 Filed 8–22–19; 8:45 am] Plant (the CLRA Line), which has been least seven days before the exemption BILLING CODE 8026–03–P jointly operated by Central of Georgia becomes effective). Railroad Company (CoG), Norfolk All pleadings, referring to Docket No. Southern Railway Company (NSR), and FD 36331, must be filed with the SMALL BUSINESS ADMINISTRATION CSX Transportation, Inc. (CSXT), Surface Transportation Board either via Surrender of License of Small pursuant to a lease from the City of e-filing or in writing addressed to 395 E Business Investment Company Childersburg Local Redevelopment Street SW, Washington, DC 20423–0001. Authority (CLRA), a municipal agency In addition, a copy of each pleading Pursuant to the authority granted to of the City of Childersburg, Ala.; (2) must be served on Applicants’ the United States Small Business lease and operate 0.73 miles of track representative, David R. Irvin, Irvin Administration under the Small from CSXT (the CSXT Line) that Rigsby PLC, 110 N Main St., Business Investment Act of 1958, as connects to the north end of the CLRA Nicholasville, KY 40356. amended, under Section 309 of the Act Line; and (3) lease and operate 2.29 According to Applicants, this action and Section 107.1900 of the Small miles of track (the NSR Line) owned by is categorically excluded from Business Administration Rules and NSR and CoG, a wholly owned environmental review under 49 CFR

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1105.6(c) and from historic preservation Ordnance Works Track, which adjoins exceed $5 million. RJAL states that the reporting requirements under 49 CFR the NSR Alabama Ordnance Works Spur agreement between RJAL, NSR, CoG, 1105.8(b). at approximately milepost 1.38 (7,221.2 CSXT, and CLRA and the underlying Board decisions and notices are feet) northeast of the CoG P-Line at lease with CLRA do not contain any available at www.stb.gov. milepost P 400.985, continuing north provision or agreement that would limit Decided: August 20, 2019. approximately 5.96 miles to the future interchange with a third-party By the Board, Allison C. Davis, Director, northern point adjoining CSXT track at connecting carrier. RJAL states that its Office of Proceedings. approximately milepost 7.34 (8,716 feet lease with CSXT also does not contain south of CSXT milepost AN 926). The Jeffrey Herzig, any provision or agreement that would CSXT Line runs between milepost ANJA limit future interchange with a third- Clearance Clerk. 925.03 and milepost ANJS 925.76. The party connecting carrier. However, [FR Doc. 2019–18216 Filed 8–22–19; 8:45 am] NSR Line consists of the Alabama BILLING CODE 4915–01–P Ordnance Works Spur Track, from the according to RJAL, the lease agreement end of the insulated joint, south of the between RJAL and NSR/CoG does derail located approximately at milepost contain an interchange commitment, in SURFACE TRANSPORTATION BOARD 0.06 (309 feet) from the point of switch the form of lease credits.2 Accordingly, [Docket No. FD 36330] off of the CoG P-Line (near milepost P RJAL has provided additional 400.985) to the adjoining CLRA track information regarding the interchange R. J. Corman Railroad Company/ located at approximately milepost 1.38 commitment, as required by 49 CFR Childersburg Line, LLC—Change in (6,912 feet) northeast, and the Coosa 1150.33(h). Operators, Lease and Operation River Newsprint Spur Track from the Under 49 CFR 1150.32(b), a change in Exemption With Interchange ends of the insulated joints located on operator requires that notice be given to Commitment—City of Childersburg the wye tracks approximately 207 feet shippers. RJAL certifies that it has Local Redevelopment Authority, and 260 feet from the points of switch provided notice of the proposed Norfolk Southern Railway Company, located off of NSR’s Southern Railway transaction to all known shippers on the Central of Georgia Railroad Company, Line (near milepost 102.187 N and Line. and CSX Transportation, Inc. milepost 101.863 N, respectively) for a distance of approximately 5,423 feet and The earliest this transaction may be R. J. Corman Railroad Company/ 5,370 feet, respectively, where it joins consummated is September 6, 2019, the Childersburg Line, LLC (RJAL), a the Alabama Ordnance Works Spur effective date of the exemption (30 days noncarrier, has filed a verified notice of Track at milepost 1.07. after the verified notice was filed). exemption under 49 CFR 1150.31 to The transaction is related to a permit RJAL to: (1) Change operators If the verified notice contains false or concurrently filed verified notice of misleading information, the exemption and assume the lease and operation of exemption in R. J. Corman Railroad is void ab initio. Petitions to revoke the approximately 10.30 miles of rail line Group, LLC—Continuance in Control exemption under 49 U.S.C. 10502(d) and related industrial track located at Exemption—R. J. Corman Railroad the former Alabama Army Ammunition Company/Childersburg Line, LLC, may be filed at any time. The filing of Plant (the CLRA Line), which has been Docket No. FD 36331, in which R. J. a petition to revoke will not jointly operated by Central of Georgia Corman Railroad Group, LLC, and R. J. automatically stay the effectiveness of Railroad Company (CoG), Norfolk Corman Railroad Company, LLC, seek to the exemption. Petitions for stay must Southern Railway Company (NSR), and continue in control of RJAL upon be filed no later than August 30, 2019 CSX Transportation, Inc. (CSXT), RJAL’s becoming a Class III rail carrier. (at least seven days before the pursuant to a lease from the City of RJAL states that it has reached an exemption becomes effective). Childersburg Local Redevelopment agreement in principle with CLRA, All pleadings, referring to Docket No. Authority (CLRA), a municipal agency NSR, CoG, and CSXT under which it FD 36330, must be filed with the of the City of Childersburg, Ala.; 1 (2) will assume the underlying lease Surface Transportation Board either via lease and operate 0.73 miles of track agreement and will lease and operate e-filing or in writing addressed to 395 E from CSXT (the CSXT Line) that the CLRA Line. RJAL represents that it Street SW, Washington, DC 20423–0001. connects to the north end of the CLRA has also reached an agreement in Line; and (3) lease and operate 2.29 principle with NSR and CoG to lease In addition, a copy of each pleading miles of track (the NSR Line) owned by and operate the NSR Line, and has must be served on RJAL’s NSR and CoG, a wholly owned reached an agreement in principle with representative, David R. Irvin, Irvin subsidiary of NSR, that connects to the CSXT to lease and operate the CSXT Rigsby PLC, 110 N. Main St., south end of the CLRA Line. Line. RJAL states that, upon the Nicholasville, KY 40356. The CLRA Line, the NSR Line, and effective date of this notice, RJAL will According to RJAL, this action is the CSXT Line (collectively, the Line) replace CoG, NSR, and CSXT as the categorically excluded from all are located in Talladega County, Ala. CLRA Line’s operator, and that, upon environmental review under 49 CFR The CLRA Line runs from the south side RJAL’s assumption of operations, NSR, 1105.6(c) and from historic preservation of the Reservation of the Alabama CoG, and CSXT will have no further reporting requirements under 49 CFR common carrier obligation on the CLRA 1105.8(b). 1 According to the verified notice, CLRA acquired Line. RJAL further states that its lease of ownership of the CLRA Line from the United States the CSXT Line and the NSR Line is Board decisions and notices are Government in 2003. See City of Childersburg Local available at www.stb.gov. Redevelopment Auth.—Acquis. Exemption—Rail necessary for RJAL to assume operations Line of the U.S. Gov’t, FD 34324 (STB served Apr. of the CLRA Line and connect to CSXT Decided: August 20, 2019. 21, 2003). The verified notice states that RJAL will and NSR’s respective rail networks. assume the lease and operation of the entire CLRA RJAL certifies that, as a result of this 2 Line, but clarifies that while the 2003 notice A copy of the agreement between RJAL and referenced approximately 12.68 miles of rail line, transaction, its projected revenues will NSR/CoG with the interchange commitment was current measurements reveal approximately 10.3 not result in RJAL’s becoming a Class I submitted under seal with the verified notice. See miles of trackage. or Class II rail carrier and will not 49 CFR 1150.33(h)(1)(ii).

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By the Board, Allison C. Davis, Director, various matters. The RRSC was DEPARTMENT OF TRANSPORTATION Office of Proceedings. established to advise TVA on its natural Jeffrey Herzig, resources and stewardship activities and Federal Highway Administration Clearance Clerk. the priority to be placed among Notice of Final Federal Agency Actions [FR Doc. 2019–18215 Filed 8–22–19; 8:45 am] competing objectives and values. Notice on Proposed Highway Realignment in BILLING CODE 4915–01–P of this meeting is given under the California and Nevada Federal Advisory Committee Act (FACA). AGENCY: Federal Highway TENNESSEE VALLEY AUTHORITY Administration (FHWA), DOT. DATES: The meeting will be held ACTION: Notice of limitation on claims Charter Renewal of the Regional September 11–12, 2019. Wednesday’s for Judicial review of actions by FHWA. Energy Resource Council meeting will run from 8:30 a.m. to 12:00 p.m. CDT, and Thursday’s meeting will SUMMARY: The Federal Highway AGENCY: Tennessee Valley Authority run from 8:30 a.m. to 11:30 a.m. CDT. Administration (FHWA) is issuing this (TVA). notice to announce actions taken by ACTION: Renewal of Federal Advisory ADDRESSES: The meeting will be held at FHWA that are final. This notice Committee. the Pickwick Pines Resort Activities announces to the public that FHWA, as Center at 11 Ashley Avenue, Iuka, the National Environmental Policy Act SUMMARY: Pursuant to the Federal Mississippi. An individual requiring (NEPA) lead agency, circulated a Final Advisory Committee Act (FACA), the special accommodation for a disability Environmental Impact Statement (EIS) TVA Board of Directors has renewed the should let the contact below know at and Section De Minimis Determination Regional Energy Resource Council least a week in advance. (October 19, 2018) for the US 50/South (RERC) charter for an additional two- Shore Community Revitalization Project year period beginning on August 1, FOR FURTHER INFORMATION CONTACT: (project) and issued a Record of 2019. Cathy Coffey, 865–632–4494, ccoffey@ Decision (ROD) (August 2, 2019). The tva.gov. FOR FURTHER INFORMATION CONTACT: actions relate to a proposed highway realignment project on US Highway 50 Elizabeth Upchurch, 865–632–8305, SUPPLEMENTARY INFORMATION: The [email protected]. (US 50) in the City of South Lake Tahoe, meeting agenda includes the following California and Stateline, Nevada. SUPPLEMENTARY INFORMATION: Pursuant items: The project would realign US 50 in to FACA and its implementing 1. Introductions the Stateline casino corridor area regulations, and following consultation (postmile 79.00 to postmile 80.44) and 2. Educate on high quality dam with the Committee Management convert the existing US 50 roadway, Secretariat, General Services monitoring and safety program between a location southwest of Pioneer Administration (GSA) in accordance applied by TVA system-wide Trail in the City of South Lake Tahoe, with 41 CFR 102–3.60(a), notice is 3. Demonstrate TVA commitment to California and Lake Parkway in hereby given that the RERC has been quality recreation facilities Stateline, Nevada, into a two-lane local renewed for a two-year period beginning street (one travel lane in each direction). August 1, 2019. The RERC will provide 4. Inform and involve members in regional erosion study Realigned US 50 would be four lanes advice to TVA on its issues affecting (two travel lanes in each direction) with energy resource activities. The RERC 5. Public Comments left-turn pockets at intersections; it was originally established in 2013 to 6. Council Discussion would begin at a relocated Pioneer Trail advise TVA on its energy resource intersection to the west of the existing activities and the priority to be placed The meeting is open to the public. intersection, and proceed south along among competing objectives and values. Comments from the public will be existing Moss and Echo Roads. The It has been determined that the RERC accepted Thursday, September 12 at realigned highway would then turn east continues to be needed to provide an 9:30 a.m., CDT, for 60 minutes. onto the Montreal Road alignment, additional mechanism for public input Registration to speak is from 8:00 a.m. passing behind (southeast of) the regarding energy issues. to 9:00 a.m., CDT, at the door. TVA will Heavenly Village Center shopping Dated: August 15, 2019. set speaking time limits once registered. complex, and continuing along the Joseph J. Hoagland, Handout materials should be limited to existing Montreal Road and Lake Vice President, Tennessee Valley Authority. one printed page. Written comments Parkway alignments. The proposed may be sent to the RRSC at any time action includes a new, two-lane [FR Doc. 2019–18156 Filed 8–22–19; 8:45 am] through links on TVA’s website at roundabout at the intersection of US 50 BILLING CODE 8120–08–P www.tva.com/rrsc or by mailing to the and Lake Parkway in Stateline, Nevada. Regional Resource Stewardship Council, The affected segment of existing US 50 TENNESSEE VALLEY AUTHORITY Tennessee Valley Authority, 400 West is approximately 1.1 miles long. Summit Hill Drive, WT 9D, Knoxville, The existing right-of-way of the Meeting of the Regional Resource Tennessee 37902. segment of US 50 between Pioneer Trail Stewardship Council and Lake Parkway—the new ‘‘Main Dated: August 15, 2019. Street’’—would be relinquished to the AGENCY: Tennessee Valley Authority Joseph J. Hoagland, City of South Lake Tahoe in California, (TVA). Vice President, Innovation and Research, and Douglas County in Nevada. ACTION: Notice of meeting. Tennessee Valley Authority. Realigned US 50 would become [FR Doc. 2019–18155 Filed 8–22–19; 8:45 am] California Department of Transportation SUMMARY: The TVA Regional Resource BILLING CODE 8120–08–P (Caltrans) and Nevada Department of Stewardship Council (RRSC) will hold a Transportation (NDOT) right-of-way. meeting on Wednesday and Thursday, Between Park Avenue and Lake September 11–12, 2019, to consider Parkway, the new ‘‘Main Street’’ would

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be reduced to one travel lane in each jointly prepared the Final EIR/EIS/EIS 10. FHWA Noise Standards, Policies, direction, with landscaped medians, pursuant to the requirements of NEPA, and Procedures (23 CFR 772); and turn pockets at major intersections the California Environmental Quality 11. Department of Transportation Act and driveways. Expanded sidewalks, a Act (CEQA), and the Tahoe Regional of 1966, Section 4(f) (49 U.S.C. 303); Class IV bicycle route (i.e., cycle track), Planning Compact (Pub. L. 96–551) and 12. Endangered Species Act of 1973 and a transit circulator are proposed to 1980 revision (Compact), Code of (16 U.S.C. 1531–1543); be implemented in this section within Ordinances, and Rules of Procedure. 13. Migratory Bird Treaty Act (16 the tourist core to improve pedestrian TTD is the lead agency under CEQA. U.S.C. 703–712); safety and encourage use of alternative FHWA is the lead agency under NEPA. 14. National Historic Preservation Act transportation modes. A pedestrian TRPA is the lead agency for the TRPA of 1966, as amended (54 U.S.C. 306108 bridge would be constructed over EIS pursuant to their Rules of et seq.); realigned US 50 approximately 250 feet Procedure. 15. Executive Order 11990, Protection south of the proposed new intersection The project proposes to realign US 50 of Wetlands; at the Harrah’s entrance driveway near to the southeast of existing US 50 from 16. Executive Order 13112, Invasive the California/Nevada state line just west of the Pioneer Trail Species; connecting Van Sickle Bi-State Park to intersection in California to Lake 17. Executive Order 12898, Federal the Stateline area. Parkway in Nevada; reduce the existing Actions to Address Environmental The proposed action would result in right-of-way of the segment of US 50 Justice and Low-Income Populations; displacing residents and would between Pioneer Trail and Lake 18. Title VI of Civil Rights Act 1964 construct replacement housing for those Parkway—the new ‘‘Main Street’’—to (42 U.S.C. 2000d et seq.), as amended. residents before removing existing one travel lane in each direction, with (Catalog of Federal Domestic Assistance housing and constructing the roadway landscaped medians, and new and/or Program Number 20.205, Highway Planning improvements in California so that upgraded bicycle lanes and sidewalks and Construction. The regulations residents displaced by the project may throughout the project site; and implementing Executive Order 12372 be relocated to the newly constructed construct replacement housing for regarding intergovernmental consultation on housing if they so choose during the dislocated residents in the immediate Federal programs and activities apply to this relocation process. vicinity. program.) The action taken by FHWA includes The actions taken by the Federal Authority: 23 U.S.C. 139(l)(1). approval of the project. agencies, and the laws under which Issued on: August 19, 2019. such actions were taken, are described DATES: By this notice, the FHWA, is Tashia J. Clemons, advising the public of final agency in the Final EIR/EIS/EIS for the project, approved on November 9, 2018 by the Director, Planning and Environment Team, actions subject to 23 U.S.C. 139(l)(1). A Federal Highway Administration, claim seeking judicial review of the TTD Board and on November 15, 2018 Sacramento, California. by the TRPA Governing Board of Federal agency actions on the highway [FR Doc. 2019–18224 Filed 8–22–19; 8:45 am] Directors, and in the FHWA Record of project will be barred unless the claim BILLING CODE 4910–RY–P is filed on or before ll. If the Federal Decision (ROD), issued on August 2, law that authorizes judicial review of a 2019, and in other documents in the claim provides a time period of less FHWA project records. The Final EIR/ DEPARTMENT OF TRANSPORTATION than 150 days for filing such claim, then EIS/EIS and other project records are that shorter time period still applies. available by contacting FHWA, at the Pipeline and Hazardous Materials FOR FURTHER INFORMATION CONTACT: address provided above. The FHWA Safety Administration Final EIR/EIS/EIS can be viewed and For FHWA: Scott McHenry, Sr. [Docket No. PHMSA–2009–0390] Transportation Engineer, Project downloaded from the project website at: Delivery Team, Federal Highway https://www.tahoetransportation.org/ Pipeline Safety: Request for Special Administration, 650 Capitol Mall, Suite us50. This notice applies to all Federal Permit Colonial Pipeline Company 4–100, Sacramento, California 95814, agency decisions as of the issuance date (916) 498–5854, or email: of this notice and all laws under which AGENCY: Pipeline and Hazardous [email protected]. For Caltrans: such actions were taken, included but Materials Safety Administration Laura Loeffler, Senior Environmental not limited to: (PHMSA); DOT. Planner, California Department of 1. Council on Environmental Quality ACTION: Notice. Transportation, 703 B Street, P.O. Box regulations (40 CFR 1500 et seq., 23 CFR 911, Marysville, California 95901, (530) 771); SUMMARY: PHMSA is publishing this 741–4592, or email: laura.loeffler@ 2. National Environmental Policy Act notice to seek public comments on a dot.ca.gov. (NEPA) (42 U.S.C. 4321–4351 et seq.) request for a special permit, seeking For NDOT: Nick Johnson, Chief, 3. Federal-Aid Highway Act of 1970, relief from compliance with certain Project Management Division, Nevada 23 U.S.C. 109; requirements in the Federal pipeline 4. Fixing America’s Surface Department of Transportation, 1263 safety regulations. At the conclusion of Transportation Act of 2015; South Stewart Street, Carson City, the 30-day comment period, PHMSA 5. Clean Air Act of 1963, as amended will review the comments received from Nevada 89712, (775) 888–7318, or (42 U.S.C. 7401 et seq.) email: [email protected]. this notice as part of its evaluation to 6. Clean Water Act of 1977 (33 U.S.C. grant or deny the special permit request. SUPPLEMENTARY INFORMATION: The Final 1344) Environmental Impact Report (EIR)/EIS/ 7. Federal Land Policy and DATES: Submit any comments regarding EIS is a joint document prepared by the Management Act of 1976 this special permit request by Tahoe Transportation District (TTD), (Paleontological Resources); September 23, 2019. Tahoe Regional Planning Agency 8. Safe Drinking Water Act of 1944, as ADDRESSES: Comments should reference (TRPA), and FHWA and is subject to amended; the docket number for the specific state and federal environmental review 9. Noise Control Act of 1979 (42 special permit request and may be requirements. FHWA, TTD, and TRPA U.S.C. 4901 et seq.) submitted in the following ways:

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• E-Gov Website: http:// maximum operating pressure (MOP) of of environmental documentation while www.Regulations.gov. This site allows 574 pounds per square inch gauge (psig) reducing the length of these documents. the public to enter comments on any and special permit segment 2 is The One Federal Decision memorandum Federal Register notice issued by any operated at a MOP of 743 psig. will provide direction on how and when agency. The proposed special permit and to apply the One Federal Decision • Fax: 1–202–493–2251. Draft Environmental Assessment (DEA) process to DOT projects. • Mail: Docket Management System: for Colonial are available for public DATES: Both of these memoranda are U.S. Department of Transportation, review and comment in Docket No. effective, as interim policies, on the date Docket Operations, M–30, West PHMSA–2009–0390 at of publication of this notice. Comments Building Ground Floor, Room W12–140, www.Regulations.gov. We invite must be received by September 23, 1200 New Jersey Avenue SE, interested persons to participate by 2019. Late-filed comments will be Washington, DC 20590. reviewing the special permit request considered to the extent practicable. • Hand Delivery: Docket Management and DEA, and by submitting written FOR FURTHER INFORMATION CONTACT: System: U.S. Department of comments, data or other views. Please Rhonda Solomon, Environmental Transportation, Docket Operations, M– include any comments on potential Protection Specialist, U.S. Department 30, West Building Ground Floor, Room safety and environmental impacts that of Transportation, Office of the W12–140, 1200 New Jersey Avenue SE, may result if the special permit is Secretary, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. granted. Washington, DC 20590, at (202) 366– and 5 p.m., Monday through Friday, Before issuing a decision on the 5397 or email [email protected]. except Federal holidays. special permit request, PHMSA will SUPPLEMENTARY INFORMATION: Instructions: You should identify the evaluate all comments received on or docket number for the special permit before the comments closing date. Electronic Access and Filing request you are commenting on at the Comments received after the comment Availability: The Page Limits interim beginning of your comments. If you closing date, will be evaluated if it is policy is available for public review and submit your comments by mail, please possible to do so without incurring comment at: https:// submit two copies. To receive additional expense or delay. PHMSA www.transportation.gov/transportation- confirmation that PHMSA has received will consider each relevant comment we policy/permittingcenter/interim-policy- your comments, please include a self- receive in making our decision to grant page-limits-nepa-documents-and- addressed stamped postcard. Internet or deny a request. focused. The One Federal Decision users may submit comments at http:// Issued in Washington, DC, on August 19, interim policy is also available at: www.Regulations.gov. 2019, under authority delegated in 49 CFR https://www.transportation.gov/ Note: There is a privacy statement 1.97. transportation-policy/permittingcenter/ published on http:// Alan K. Mayberry, interim-policy-one-federal-decision- www.Regulations.gov. Comments, Associate Administrator for Pipeline Safety. implementation. including any personal information [FR Doc. 2019–18169 Filed 8–22–19; 8:45 am] Comments should refer to the docket provided, are posted without changes or number above and be submitted by one edits to http://www.Regulations.gov. BILLING CODE 4909–60–P of the following methods: FOR FURTHER INFORMATION CONTACT: • Federal Rulemaking Portal: http:// General: Ms. Kay McIver by telephone DEPARTMENT OF TRANSPORTATION www.regulations.gov. Follow the online at 202–366–0113, or email at instructions for submitting comments. [email protected]. Office of the Secretary of • Mail: Docket Management Facility, Technical: Mr. Steve Nanney by Transportation U.S. Department of Transportation, 1200 telephone at 713–272–2855, or email at [Docket No. DOT–OST–2019–0118] New Jersey Avenue SE, West Building [email protected]. Ground Floor, Room W12–140, SUPPLEMENTARY INFORMATION: PHMSA RIN 2105–ZA09 Washington, DC 20590–0001. has received a special permit request RIN 2105–ZA10 • Hand Delivery: 1200 New Jersey from the Colonial Pipeline Company Interim Policies on Page Limits for Avenue SE, West Building Ground (Colonial) to deviate from the Federal National Environmental Policy Act Floor, Room W12–140, Washington, DC, pipeline safety regulations in 49 CFR Documents and the Application of the between 9 a.m. and 5 p.m. ET, Monday 195.310 for two (2) segments of the One Federal Decision Process to DOT through Friday, except Federal Colonial hazardous liquid pipeline Projects Holidays. system, where Colonial has failed to Instructions: For detailed instructions retain certain hydrostatic pressure test AGENCY: Office of the Secretary of on submitting comments and additional records. The first segment is a 66.372- Transportation (OST), U.S. Department information on the rulemaking process, mile portion of the 40-inch diameter of Transportation (DOT). see the Public Participation heading of Line 01 located in Acadia, St. Landry, ACTION: Notice of availability and the SUPPLEMENTARY INFORMATION section Point Coupee, and West Feliciana request for comments. of this document. Note that all Parishes, Louisiana (see special permit comments received will be posted segment 1 below). The second segment SUMMARY: This notice announces the without change to http:// is a 10.234-mile portion of the 40-inch availability of two U.S. Department of www.regulations.gov, including any diameter Line 01 located in Fulton, Transportation interim policies for personal information provided. DeKalb and Gwinnett Counties, Georgia public comment: (1) Page Limits for Privacy Act: Anyone is able to search (see special permit segment 2 below). National Environmental Policy Act the electronic form of all comments This special permit, if granted, would Documents and Focused Analyses and received into any of our dockets by the waive certain hydrostatic test record- (2) Application of the One Federal name of the individual submitting the keeping requirements of 49 CFR Decision Process to DOT Projects. DOT comment (or signing the comment, if 195.310. Colonial operates the pipeline anticipates that the Page Limits submitted on behalf of an association, in special permit segment 1 at a memorandum will improve the quality business, labor union, etc.). You may

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review DOT’s complete Privacy Act Application of the One Federal implementation of the OFD process to Statement in the Federal Register Decision Process to DOT Projects their projects. published on April 11, 2000 (65 FR On August 15, 2017, the President The DOT interim policy on the 19477–78) or at https:// signed E.O. 13807, Establishing Application of the OFD Process to DOT www.transportation.gov/privacy. Discipline and Accountability in the Projects provides DOT NEPA Docket: For access to the docket to Environmental Review and Permitting practitioners the processes and read background documents or Process for Infrastructure Projects. This procedures to implement the E.O., the comments received, go to http:// E.O. mandated Federal agencies to use MOU, and the OMB accountability www.regulations.gov or to the street a One Federal Decision (OFD) process system guidance to DOT projects. It address listed above. Follow the online for ‘‘major infrastructure projects’’ incorporates guidance issued by OMB instructions for accessing the dockets. (MIPs). MIPs are defined by the E.O. as and CEQ on the application of the E.O. infrastructure projects that require to States participating in the NEPA Page Limits for National Environmental multiple authorizations by Federal Assignment Program authorized by 23 Policy Act Documents and Focused agencies, where the lead agency has U.S.C. 327. See M–19–11, Memorandum Analyses determined that the projects will require for the Secretary of Transportation: Guidance on the Applicability of E.O. Consistent with the Council on an environmental impact statement (EIS), and the project sponsor has 13807 to States with NEPA Assignment Environmental Quality (CEQ) Authority under the Surface ‘‘Regulations for Implementing the identified the reasonable availability of funds sufficient to complete the project. Transportation Project Delivery Program Procedural Provisions of the National (Feb. 26, 2019), https:// Environmental Policy Act’’ (NEPA), this The E.O. directs Federal agencies that have MIPs to prepare a permitting www.whitehouse.gov/wp-content/ interim policy provides that, to the uploads/2019/02/m-19-11.pdf. extent practicable, DOT operating timetable to be tracked through the administrations (OAs) should limit the Federal Permitting Dashboard at https:// Issued in Washington, DC, on August 19, text of draft and final environmental www.permits.performance.gov/, 2019. impact statements (EISs) to 150 pages, establish an elevation process when a Loren Smith, unless they are of an unusual scope or milestone may be missed or extended Deputy Assistant Secretary for Transportation complexity. The interim policy also through an accountability system, and Policy. recommends that environmental prepare a single environmental [FR Doc. 2019–18204 Filed 8–22–19; 8:45 am] assessments not exceed 75 pages. The document and record of decision (ROD). BILLING CODE 4910–9X–P memorandum also discusses best These projects should have one lead practices to help comply with these Federal agency to navigate the project page limits. through the environmental review and authorization process. The E.O. DEPARTMENT OF THE TREASURY DOT finds it necessary to issue this establishes the goal of completing the Office of the Comptroller of the interim policy because lengthy NEPA environmental review process for MIPs Currency documents, containing extraneous detail in two years. In addition, all Federal and needless data, have resulted in authorization decisions should be Agency Information Collection increases in both time and cost to completed within 90 days of the complete the environmental review Activities; Information Collection issuance of the ROD. Section 5(b)(iv)(C) Renewal; Submission for OMB Review; process and has made it increasingly also makes clear that the E.O. should be difficult for agency decisionmakers and Bank Secrecy Act/Money Laundering followed by State, tribal, or local Risk Assessment the public to find the relevant agencies that are exercising an information regarding proposed actions. assignment or delegation of a Federal AGENCY: Office of the Comptroller of the Setting appropriate page limits is agency’s NEPA responsibilities. Currency (OCC), Treasury. recognized as a mechanism to reduce On April 9, 2018, several Departments ACTION: Notice and request for comment. excessive paperwork and ensure that and agencies involved in the NEPA documentation is clear, concise, development and approval of SUMMARY: The OCC, as part of its and focused. infrastructure projects, including DOT, continuing effort to reduce paperwork In addition to reaffirming the executed a Memorandum of and respondent burden, invites the requirements found in CEQ regulations, Understanding (MOU) to facilitate the general public and other federal this memorandum is consistent with the implementation of the E.O. The MOU agencies to take this opportunity to Department’s existing NEPA outlined the roles and responsibilities comment on a continuing information implementing procedures, DOT Order for the agencies. This included collection, as required by the Paperwork 5610.1C, ‘‘Procedures for Considering establishing a pre-scoping process, Reduction Act of 1995. Environmental Impacts’’ (July 30, 1985). concurrence points where each agency In accordance with the requirements It also aligns with the goals stated in would have to agree in writing to key of the Paperwork Reduction Act of 1995 Executive Order (E.O.) 13807, decision points, an elevation process to (PRA), the OCC may not conduct or Establishing Discipline and address disputes and schedule changes, sponsor, and the respondent is not Accountability in the Environmental and limited exceptions for applying the required to respond to, an information Review and Permitting Process for OFD process. collection unless it displays a currently Infrastructure Projects, 82 FR 40463 In September 26, 2018, Office of valid Office of Management and Budget (Aug. 24, 2017), to achieve more Management and Budget (OMB) (OMB) control number. efficient and effective Federal released Memorandum M–18–25, The OCC is soliciting comment infrastructure decisions. The E.O. Modernize Infrastructure Permitting concerning its information collection includes the goal of completing all Cross-Agency Priority Goal Performance entitled, ‘‘Bank Secrecy Act/Money Federal environmental reviews and Accountability System. This Laundering Risk Assessment,’’ also authorization decisions for ‘‘major memorandum outlined how agencies known as the Money Laundering Risk infrastructure projects’’ within 2 years. would be held accountable for the (MLR) System. The OCC also is giving

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notice that it has submitted the • For assistance in navigating the agency to better identify those collection to OMB for review. www.reginfo.gov, please contact the institutions, and areas within DATES: Comments must be submitted by Regulatory Information Service Center institutions, that pose heightened risk September 23, 2019. at (202) 482–7340. and allocate examination resources • ADDRESSES: Commenters are encouraged Viewing Comments Personally: You accordingly. This risk assessment is to submit comments by email, if may personally inspect comments at the critical in protecting U.S. financial possible. You may submit comments by OCC, 400 7th Street SW, Washington, institutions of all sizes from potential any of the following methods: DC. For security reasons, the OCC abuse from money laundering and • Email: [email protected]. requires that visitors make an terrorist financing. An appropriate risk • Mail: Chief Counsel’s Office, appointment to inspect comments. You assessment allows applicable control to Attention: Comment Processing, 1557– may do so by calling (202) 649–6700 or, be effectively implemented for the lines 0231, Office of the Comptroller of the for persons who are deaf or hearing of business, products, or entities that Currency, 400 7th Street SW, Suite 3E– impaired, TTY, (202) 649–5597. Upon would elevate Bank Secrecy Act/Money 218, Washington, DC 20219. arrival, visitors will be required to Laundering and OFAC compliance • Hand Delivery/Courier: 400 7th present valid government-issued photo risks. Street SW, Suite 3E–218, Washington, identification and submit to security We will collect MLR information for DC 20219. screening in order to inspect comments. • community banks supervised by the Fax: (571) 465–4326. FOR FURTHER INFORMATION CONTACT: OCC. Instructions: You must include Shaquita Merritt, OCC Clearance The format of OCC’s annual Risk ‘‘OCC’’ as the agency name and ‘‘1557– Officer, (202) 649–5490, or for persons 0231’’ in your comment. In general, the Summary Form (RSF) is fully who are deaf or hearing impaired, TTY, automated, making data entry quick and OCC will publish comments on (202) 649–5597, Chief Counsel’s Office, www.reginfo.gov without change, efficient and providing an electronic Office of the Comptroller of the including any business or personal record for all parties. Currency, 400 7th Street SW, information provided, such as name and The OCC estimates the burden of this Washington, DC 20219. address information, email addresses, or collection of information as follows: SUPPLEMENTARY INFORMATION: phone numbers. Comments received, Under the Burden Estimates: Community bank including attachments and other PRA (44 U.S.C. 3501 et seq.), federal population: supporting materials, are part of the agencies must obtain approval from the OMB for each collection of information Estimated Number of Respondents: public record and subject to public 1,088. disclosure. Do not include any they conduct or sponsor. ‘‘Collection of information’’ is defined in 44 U.S.C. Estimated Number of Responses: information in your comment or 1,088. supporting materials that you consider 3502(3) and 5 CFR 1320.3(c) to include confidential or inappropriate for public questions posed to agencies, Frequency of Response: Annually. disclosure. instrumentalities, or employees of the Estimated Annual Burden: 6,528 Additionally, please send a copy of United States, if the results are to be hours. your comments by mail to: OCC Desk used for general statistical purposes, On May 10, 2019, the OCC issued a Officer, 1557–0231, U.S. Office of that is, if the results are to be used for notice for 60 days of comment Management and Budget, 725 17th statistical compilations of general public concerning this collection. No Street NW, #10235, Washington, DC interest, including compilations comments were received. Comments 20503 or by email to oira_submission@ showing the status or implementation of continue to be invited on: federal activities and programs. The omb.eop.gov. (a) Whether the collection of You may review comments and other OCC asks that OMB extend its approval of this collection. information is necessary for the proper related materials that pertain to this performance of the functions of the information collection 1 following the Title: Bank Secrecy Act/Money Laundering Risk Assessment. agency, including whether the close of the 30-day comment period for information has practical utility; this notice by any of the following OMB Control No: 1557–0231. (b) The accuracy of the agency’s methods: Type of Review: Regular. • Viewing Comments Electronically: Affected Public: Business or other for- estimate of the burden of the collection Go to www.reginfo.gov. Click on the profit. of information; ‘‘Information Collection Review’’ tab. Description: The MLR System (c) Ways to enhance the quality, Underneath the ‘‘Currently under enhances the ability of examiners and utility, and clarity of the information to Review’’ section heading, from the drop- bank management to identify and be collected; down menu select ‘‘Department of evaluate Bank Secrecy Act/Money (d) Ways to minimize the burden of Treasury’’ and then click ‘‘submit.’’ This Laundering and Office of Foreign Asset the collection on respondents, including information collection can be located by Control (OFAC) sanctions risks through the use of automated collection searching by OMB control number associated with banks’ products, techniques or other forms of information ‘‘1557–0231’’ or ‘‘Bank Secrecy Act/ services, customers, and locations. As technology; and Money Laundering Risk Assessment.’’ new products and services are (e) Estimates of capital or start-up Upon finding the appropriate introduced, existing products and costs and costs of operation, information collection, click on the services change, and banks expand maintenance, and purchase of services related ‘‘ICR Reference Number.’’ On the through mergers and acquisitions, to provide information. next screen, select ‘‘View Supporting banks’ evaluation of money laundering Dated: August 19, 2019. Statement and Other Documents’’ and and terrorist financing risks should then click on the link to any comment evolve as well. Consequently, the MLR Theodore J. Dowd, listed at the bottom of the screen. risk assessment is an important tool for Deputy Chief Counsel, Office of the the OCC’s Bank Secrecy Act/Anti- Comptroller of the Currency. 1 On May 10, 2019, the OCC published a 60-day Money Laundering and OFAC [FR Doc. 2019–18158 Filed 8–22–19; 8:45 am] notice for this information collection, 84 FR 20701. supervision activities because it allows BILLING CODE 4810–33–P

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DEPARTMENT OF THE TREASURY Additionally, please send a copy of keep records, or provide information to your comments by mail to: OCC Desk a third party. The OCC asks OMB to Office of the Comptroller of the Officer, 1557–0227, U.S. Office of extend its approval of the information Currency Management and Budget, 725 17th collection contained in this notice. Street NW, #10235, Washington, DC Title: Guidance Regarding Agency Information Collection 20503 or by email to oira_submission@ Unauthorized Access to Customer Activities: Information Collection omb.eop.gov. Information. Renewal; Submission for OMB Review; You may review comments and other OMB Control No.: 1557–0227. Guidance Regarding Unauthorized related materials that pertain to this Description: Section 501(b) of the Access to Customer Information information collection 1 following the Gramm-Leach-Bliley Act (15 U.S.C. AGENCY: Office of the Comptroller of the close of the 30-day comment period for 6801(b)) requires the OCC to establish Currency (OCC), Treasury. this notice by any of the following appropriate standards for national banks methods: relating to administrative, technical, and ACTION: Notice and request for comment. • Viewing Comments Electronically: physical safeguards: (1) To insure the SUMMARY: The OCC, as part of its Go to www.reginfo.gov. Click on the security and confidentiality of customer continuing effort to reduce paperwork ‘‘Information Collection Review’’ tab. records and information; (2) to protect and respondent burden, invites the Underneath the ‘‘Currently under against any anticipated threats or general public and other federal Review’’ section heading, from the drop- hazards to the security or integrity of agencies to take this opportunity to down menu select ‘‘Department of such records; and (3) to protect against comment on a continuing information Treasury’’ and then click ‘‘submit.’’ This unauthorized access to, or use of, such collection as required by the Paperwork information collection can be located by records or information that could result Reduction Act of 1995 (PRA). searching by OMB control number in substantial harm or inconvenience to In accordance with the requirements ‘‘1557–0227’’ or ‘‘Notice Regarding any customer. of the PRA, the OCC may not conduct Unauthorized Access to Customer The Interagency Guidelines or sponsor, and respondents are not Information.’’ Upon finding the Establishing Information Security required to respond to, an information appropriate information collection, click Standards, 12 CFR part 30, appendix B collection unless it displays a currently on the related ‘‘ICR Reference Number.’’ (Security Guidelines), which implement valid Office of Management and Budget On the next screen, select ‘‘View section 501(b), require each entity (OMB) control number. Supporting Statement and Other supervised by the OCC (supervised The OCC is soliciting comment Documents’’ and then click on the link institution) to consider and adopt a concerning the renewal of its to any comment listed at the bottom of response program, as appropriate, that information collection titled, ‘‘Guidance the screen. specifies actions to be taken when the Regarding Unauthorized Access to • For assistance in navigating supervised institution suspects or Customer Information.’’ The OCC also is www.reginfo.gov, please contact the detects that unauthorized individuals giving notice that it has submitted the Regulatory Information Service Center have gained access to customer collection to OMB for review. at (202) 482–7340. information systems. • DATES: Comments must be submitted on Viewing Comments Personally: You The Interagency Guidance on or before September 23, 2019. may personally inspect comments at the Response Programs for Unauthorized OCC, 400 7th Street SW, Washington, ADDRESSES: Commenters are encouraged Customer Information and Customer to submit comments by email, if DC. For security reasons, the OCC Notice (Breach Notice Guidance),2 possible. You may submit comments by requires that visitors make an which interprets the Security any of the following methods: appointment to inspect comments. You Guidelines, states that, at a minimum, a • Email: [email protected]. may do so by calling (202) 649–6700 or, supervised institution’s response • Mail: Chief Counsel’s Office, for persons who are deaf or hearing program should contain procedures for: Attention: Comment Processing, 1557– impaired, TTY, (202) 649–5597. Upon (1) Assessing the nature and scope of 0227, Office of the Comptroller of the arrival, visitors will be required to an incident, and identifying what Currency, 400 7th Street SW, Suite 3E– present valid government-issued photo customer information systems and types 218, Washington, DC 20219. identification and submit to security of customer information have been • Hand Delivery/Courier: 400 7th screening in order to inspect comments. accessed or misused; Street SW, Suite 3E–218, Washington, FOR FURTHER INFORMATION CONTACT: (2) Notifying its primary federal DC 20219. Shaquita Merritt, OCC Clearance regulator as soon as possible when the • Fax: (571) 465–4326. Officer, (202) 649–5490 or, for persons supervised institution becomes aware of Instructions: You must include who are deaf or hearing impaired, TTY, an incident involving unauthorized ‘‘OCC’’ as the agency name and ‘‘1557– (202) 649–5597, Chief Counsel’s Office, access to, or use of, sensitive customer 0227’’ in your comment. In general, the Office of the Comptroller of the information; OCC will publish comments on Currency, 400 7th Street SW, Suite 3E– (3) Taking appropriate steps to www.reginfo.gov without change, 218, Washington, DC 20219. contain and control the incident in an including any business or personal SUPPLEMENTARY INFORMATION: Under the effort to prevent further unauthorized information provided, such as name and PRA (44 U.S.C. 3501 et seq.), federal access to, or use of, customer address information, email addresses, or agencies must obtain approval from the information, for example, by phone numbers. Comments received, OMB for each collection of information monitoring, freezing, or closing affected including attachments and other they conduct or sponsor. ‘‘Collection of accounts, while preserving records and supporting materials, are part of the information’’ is defined in 44 U.S.C. other evidence; and public record and subject to public 3502(3) and 5 CFR 1320.3(c) to include (4) Notifying customers when disclosure. Do not include any agency requests or requirements that warranted. information in your comment or members of the public submit reports, The Breach Notice Guidance states supporting materials that you consider that, when a financial institution confidential or inappropriate for public 1 On April 9, 2019, the OCC published a 60-day disclosure. notice for this information collection, 84 FR 14194. 2 12 CFR part 30, appendix B, supplement A.

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becomes aware of an incident of applicable legal criteria were satisfied. financial or technological support for or unauthorized access to sensitive All property and interests in property to, or providing goods or services in customer information, the institution subject to U.S. jurisdiction of these support of, the international narcotics should conduct a reasonable persons are blocked, and U.S. persons trafficking activities of the CESAR investigation to determine the are generally prohibited from engaging PERALTA DRUG TRAFFICKING likelihood that the information has been in transactions with them. ORGANIZATION, a foreign person misused. If the institution determines DATES: See SUPPLEMENTARY INFORMATION identified as a significant foreign that the misuse of its information about section. narcotics trafficker pursuant to the Kingpin Act. a customer has occurred or is reasonably FOR FURTHER INFORMATION CONTACT: 3. FERNANDEZ FLAQUER, Kelvin possible, it should notify the affected OFAC: Associate Director for Global Enrique (a.k.a. ‘‘COTTO’’), Dominican customer as soon as possible. Targeting, tel.: 202–622–2420; Assistant Republic; DOB 06 Dec 1977; POB Type of Review: Regular. Director for Licensing, tel.: 202–622– Affected Public: Businesses or other Higuey, Dominican Republic; 2480; Assistant Director for Regulatory nationality Dominican Republic; Gender for-profit. Affairs, tel.: 202–622–4855; Assistant Estimated Number of Respondents: Male; Cedula No. 026–0088747–1 Director for Sanctions Compliance & (Dominican Republic) (individual) 20. Evaluation, tel.: 202–622–2490; or the Total Estimated Annual Burden: 720 [SDNTK] (Linked To: CESAR PERALTA Department of the Treasury’s Office of hours. DRUG TRAFFICKING the General Counsel: Office of the Chief Frequency of Response: On occasion. ORGANIZATION). Designated pursuant Counsel (Foreign Assets Control), tel.: On April 9, 2019, the OCC issued a to section 805(b)(2) of the Kingpin Act, 202–622–2410. notice for 60 days of comment 21 U.S.C. 1904(b)(2), for materially concerning this collection, 84 FR 14194. SUPPLEMENTARY INFORMATION: assisting in, or providing financial or No comments were received. Comments Electronic Availability technological support for or to, or continue to be invited on: providing goods or services in support (a) Whether the collection of The Specially Designated Nationals of, the international narcotics trafficking information is necessary for the proper and Blocked Persons List (SDN List) and activities of the CESAR PERALTA performance of the functions of the additional information concerning DRUG TRAFFICKING ORGANIZATION, OCC, including whether the information OFAC sanctions programs are available a foreign person identified as a has practical utility; on OFAC’s website (https:// significant foreign narcotics trafficker (b) The accuracy of the OCC’s www.treasury.gov/ofac). pursuant to the Kingpin Act, and Ramon estimate of the burden of the Notice of OFAC Actions Antonio DEL ROSARIO PUENTE, a information collection; foreign person designated pursuant to (c) Ways to enhance the quality, On August 20, 2019, OFAC the Kingpin Act. utility, and clarity of the information to determined that the property and 4. FERNANDEZ CONCEPCION, be collected; interests in property subject to U.S. Carlos Ariel, Dominican Republic; DOB (d) Ways to minimize the burden of jurisdiction of the following persons are 14 Jan 1973; POB Santo Domingo, the collection on respondents, including blocked under the relevant sanctions Dominican Republic; nationality through the use of automated collection authority listed below. Dominican Republic; Gender Male; techniques or other forms of information Individuals Cedula No. 001–1217345–5 (Dominican technology; and Republic) (individual) [SDNTK]. 1. CASTRO CORDERO, Natanael, (e) Estimates of capital or start-up Designated pursuant to section 805(b)(3) Dominican Republic; DOB 08 Nov 1982; costs and costs of operation, of the Kingpin Act, 21 U.S.C. 1904(b)(3), POB Santo Domingo, Dominican maintenance, and purchase of services for being owned, controlled, or directed Republic; nationality Dominican to provide information. by, or acting for or on behalf of, Cesar Republic; Gender Male; Cedula No. Emilio PERALTA, a foreign person Dated: August 19, 2019. 001–1481029–4 (Dominican Republic) identified as a significant foreign Theodore J. Dowd, (individual) [SDNTK]. Designated narcotics trafficker pursuant to the Deputy Chief Counsel, Office of the pursuant to section 805(b)(3) of the Kingpin Act. Comptroller of the Currency. Foreign Narcotics Kingpin Designation 5. JAQUEZ ARAUJO, Yadher Rafael [FR Doc. 2019–18159 Filed 8–22–19; 8:45 am] Act (‘‘Kingpin Act’’), 21 U.S.C. (a.k.a. ‘‘JAKE MATE’’; a.k.a. ‘‘JAQUE BILLING CODE 4810–33–P 1904(b)(3), for being owned, controlled, MATE’’), Dominican Republic; DOB 15 or directed by, or acting for or on behalf Oct 1985; POB Santo Domingo, of, Cesar Emilio PERALTA, a foreign Dominican Republic; nationality DEPARTMENT OF THE TREASURY person identified as a significant foreign Dominican Republic; Gender Male; narcotics trafficker pursuant to the Cedula No. 001–1733889–7 (Dominican Office of Foreign Assets Control Kingpin Act. Republic) (individual) [SDNTK]. 2. DEL ROSARIO PUENTE, Ramon Notice of OFAC Sanctions Actions Designated pursuant to section 805(b)(3) Antonio (a.k.a. ‘‘TONO LENA’’ (Latin: of the Kingpin Act, 21 U.S.C. 1904(b)(3), AGENCY: Office of Foreign Assets ‘‘TON˜ O LEN˜ A’’)), Dominican Republic; for being owned, controlled, or directed Control, Department of the Treasury. DOB 13 Sep 1968; POB Guaymate, by, or acting for or on behalf of, Cesar ACTION: Notice. Dominican Republic; nationality Emilio PERALTA, a foreign person Dominican Republic; Gender Male; identified as a significant foreign SUMMARY: The U.S. Department of the Cedula No. 026–0027057–9 (Dominican narcotics trafficker pursuant to the Treasury’s Office of Foreign Assets Republic) (individual) [SDNTK] (Linked Kingpin Act. Control (OFAC) is publishing the names To: CESAR PERALTA DRUG 6. PERALTA, Cesar Emilio (a.k.a. ‘‘EL of persons that have been placed on TRAFFICKING ORGANIZATION). ABUSADOR’’), Dominican Republic; OFAC’s Specially Designated Nationals Designated pursuant to section 805(b)(2) DOB 30 Jan 1975; POB Distrito and Blocked Persons List based on of the Kingpin Act, 21 U.S.C. 1904(b)(2), Nacional, Dominican Republic; OFAC’s determination that one or more for materially assisting in, or providing nationality Dominican Republic; Gender

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Male; Cedula No. 001–0972783–4 001–1856559–7 (Dominican Republic) pursuant to section 805(b)(3) of the (Dominican Republic) (individual) (individual) [SDNTK] (Linked To: Kingpin Act, 21 U.S.C. 1904(b)(3), for [SDNTK] (Linked To: INKUORTYN CESAR PERALTA DRUG TRAFFICKING being owned, controlled, or directed by, FIVE SRL; Linked To: SUPLINKA SRL; ORGANIZATION; Linked To: SOLUGA or acting for or on behalf of, Cesar Linked To: FLOW GALLERY LOUNGE SOLUCIONES GASTRONOMICAS Emilio PERALTA, a foreign person SRL; Linked To: UNLIMITED DANCE SRL). Designated pursuant to section identified as a significant foreign DISCOTECA SRL). Identified as a 805(b)(2) of the Kingpin Act, 21 U.S.C. narcotics trafficker pursuant to the significant foreign narcotics trafficker 1904(b)(2), for materially assisting in, or Kingpin Act. pursuant to section 805(b)(1) of the providing financial or technological 5. SOLUGA SOLUCIONES Kingpin Act, 21 U.S.C. 1904(b)(1). support for or to, or providing goods or GASTRONOMICAS SRL (a.k.a. ‘‘AL 7. SANCHEZ NOLASCO, Boarnerges services in support of, the international PANINO’’), Av. Abraham Lincoln, Plaza (a.k.a. ‘‘WARNEL’’), Dominican narcotics trafficking activities of the Andalucia II, Primera Planta, Local Republic; DOB 02 Jul 1976; POB Hato CESAR PERALTA DRUG TRAFFICKING Comercial 49–A y 50–A, Santo Mayor, Dominican Republic; nationality ORGANIZATION, a foreign person Domingo, Distrito Nacional, Dominican Dominican Republic; Gender Male; identified as a significant foreign Republic; Tax ID No. 131–63920–8 Cedula No. 001–1595659–1 (Dominican narcotics trafficker pursuant to the (Dominican Republic) [SDNTK]. Republic) (individual) [SDNTK] (Linked Kingpin Act. Designated pursuant to section 805(b)(3) To: CESAR PERALTA DRUG Entities of the Kingpin Act, 21 U.S.C. 1904(b)(3), TRAFFICKING ORGANIZATION). for being owned, controlled, or directed Designated pursuant to section 805(b)(2) 1. BARBARO RECORDS SRL (a.k.a. by, or acting for or on behalf of, Cesar of the Kingpin Act, 21 U.S.C. 1904(b)(2), BARBARO RECORDS), Calle 34, Local Emilio PERALTA, a foreign person for materially assisting in, or providing No. 10, Los Cachorros, Cristo Rey, Santo identified as a significant foreign financial or technological support for or Domingo, Distrito Nacional, Dominican narcotics trafficker pursuant to the to, or providing goods or services in Republic; Tax ID No. 131–48344–5 Kingpin Act. support of, the international narcotics (Dominican Republic) [SDNTK]. 6. SUPLINKA SRL (a.k.a. ‘‘VIP trafficking activities of the CESAR Designated pursuant to section 805(b)(3) ROOM’’), Av. Abraham Lincoln Esq. PERALTA DRUG TRAFFICKING of the Kingpin Act, 21 U.S.C. 1904(b)(3), Independencia, Zona Universitaria, ORGANIZATION, a foreign person for being owned, controlled, or directed Santo Domingo, Dominican Republic; identified as a significant foreign by, or acting for or on behalf of, Jhonan Tax ID No. 131–40246–1 (Dominican narcotics trafficker pursuant to the Alexander URENA MARTINEZ, a Republic) [SDNTK]. Designated Kingpin Act. foreign person designated pursuant to pursuant to section 805(b)(3) of the 8. URENA MARTINEZ, Jhonan the Kingpin Act. Kingpin Act, 21 U.S.C. 1904(b)(3), for Alexander (Latin: UREN˜ A MARTINEZ, 2. CESAR PERALTA DRUG being owned, controlled, or directed by, Jhonan Alexander), Dominican TRAFFICKING ORGANIZATION (a.k.a. or acting for or on behalf of, Cesar Republic; DOB 14 May 1987; POB Santo ‘‘PERALTA DTO’’), Dominican Republic Emilio PERALTA, a foreign person Domingo, Dominican Republic; [SDNTK]. Identified as a significant identified as a significant foreign nationality Dominican Republic; Gender foreign narcotics trafficker pursuant to narcotics trafficker pursuant to the Male; Cedula No. 001–1871175–3 section 805(b)(1) of the Kingpin Act, 21 Kingpin Act. (Dominican Republic) (individual) U.S.C. 1904(b)(1). 7. UNLIMITED DANCE DISCOTECA [SDNTK] (Linked To: CESAR PERALTA 3. FLOW GALLERY LOUNGE SRL SRL (a.k.a. ‘‘AQUA CLUB’’), Av. Ortega DRUG TRAFFICKING ORGANIZATION; (a.k.a. FLOW GALLERY LOUNGE), y Gasset No. 95, Cristo Rey, Santo Linked To: BARBARO RECORDS SRL). Calle Juan de Morfa 87, Villa Consuelo, Domingo, Dominican Republic; Av. Designated pursuant to section 805(b)(2) Santo Domingo, Dominican Republic; Ortega y Gasset 91 Esq. Felix Evaristo of the Kingpin Act, 21 U.S.C. 1904(b)(2), Tax ID No. 131–42317–5 (Dominican Mejia, Santo Domingo, Dominican for materially assisting in, or providing Republic) [SDNTK]. Designated Republic; Tax ID No. 131–28035–8 financial or technological support for or pursuant to section 805(b)(3) of the (Dominican Republic) [SDNTK]. to, or providing goods or services in Kingpin Act, 21 U.S.C. 1904(b)(3), for Designated pursuant to section 805(b)(3) support of, the international narcotics being owned, controlled, or directed by, of the Kingpin Act, 21 U.S.C. 1904(b)(3), trafficking activities of the CESAR or acting for or on behalf of, Cesar for being owned, controlled, or directed PERALTA DRUG TRAFFICKING Emilio PERALTA, a foreign person by, or acting for or on behalf of, Cesar ORGANIZATION, a foreign person identified as a significant foreign Emilio PERALTA, a foreign person identified as a significant foreign narcotics trafficker pursuant to the identified as a significant foreign narcotics trafficker pursuant to the Kingpin Act. narcotics trafficker pursuant to the Kingpin Act. 4. INKUORTYN FIVE SRL (a.k.a. LA Kingpin Act. 9. VALDEZ GARCIA, Bernardo KUORA TERRAZA; a.k.a. LA TERRAZA Antonio (a.k.a. ‘‘PAPI CRIS’’), DE LA KUORA; a.k.a. ‘‘LA KUORA’’), Dated: August 20, 2019. Dominican Republic; DOB 31 Jan 1975; Calle La Guardia No. 25, Villa Consuelo, Andrea M. Gacki, POB San Cristobal, Dominican Santo Domingo, Dominican Republic; Director, Office of Foreign Assets Control. Republic; nationality Dominican Tax ID No. 131–45973–2 (Dominican [FR Doc. 2019–18186 Filed 8–22–19; 8:45 am] Republic; Gender Male; Cedula No. Republic) [SDNTK]. Designated BILLING CODE 4810–AL–P

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Part II

Securities and Exchange Commission

17 CFR Parts 229, 239, and 240 Modernization of Regulation S–K Items 101, 103, and 105; Proposed Rule

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SECURITIES AND EXCHANGE on official business days between the (Item 101), legal proceedings (Item 103), COMMISSION hours of 10:00 a.m. and 3:00 p.m. All and risk factor (Item 105) disclosure comments received will be posted requirements in Regulation S–K. We are 17 CFR 229, 239, and 240 without change. Persons submitting proposing amendments to these items to [Release Nos. 33–10668; 34–86614; File No. comments are cautioned that we do not improve these disclosures for investors S7–11–19] redact or edit personal identifying and to simplify compliance for information from comment submissions. registrants.1 RIN 3235–AL78 You should submit only information Pursuant to Section 108 of the that you wish to make available Modernization of Regulation S–K Items Jumpstart Our Business Startups Act publicly. 2 101, 103, and 105 (‘‘JOBS Act’’), the Commission staff We or the staff may add studies, prepared the Report on Review of AGENCY: Securities and Exchange memoranda, or other substantive items Disclosure Requirements in Regulation Commission. to the comment file during this S–K (‘‘S–K Study’’),3 which ACTION: Proposed rule. rulemaking. A notification of the recommended that the Commission inclusion in the comment file of any conduct a comprehensive evaluation of SUMMARY: The Securities and Exchange such materials will be made available its disclosure requirements. Based on Commission (‘‘Commission’’) is on our website. To ensure direct the S–K Study’s recommendation, the proposing for public comment electronic receipt of such notifications, staff initiated an evaluation of the amendments to modernize the sign up through the ‘‘Stay Connected’’ information our rules require registrants description of business, legal option at www.sec.gov to receive to disclose, how this information is proceedings, and risk factor disclosures notifications by email. presented, where this information is that registrants are required to make FOR FURTHER INFORMATION CONTACT: disclosed, and how we can better pursuant to Regulation S–K. These Sandra Hunter Berkheimer or Elliot leverage technology as part of these disclosure items have not undergone Staffin, Office of Rulemaking, at (202) efforts (collectively, the ‘‘Disclosure significant revisions in over 30 years. 551–3430, in the Division of Effectiveness Initiative’’).4 The overall The proposed amendments are intended Corporation Finance, U.S. Securities objective of the Disclosure Effectiveness to update our rules to account for and Exchange Commission, 100 F Street Initiative is to improve our disclosure developments since their adoption or NE, Washington, DC 20549. regime for both investors and last amendment, to improve these SUPPLEMENTARY INFORMATION: We are registrants. disclosures for investors, and to proposing to amend 17 CFR 229.101 simplify compliance efforts for (‘‘Item 101’’), 17 CFR 229.103 (‘‘Item 1 The proposed amendments are also consistent registrants. Specifically, the proposed 103’’), and 17 CFR 229.105 (‘‘Item 105’’) with and further promote the objectives of the amendments are intended to improve of 17 CFR 229.10 et seq. (‘‘Regulation S– Fixing America’s Surface Transportation Act the readability of disclosure documents, (‘‘FAST Act’’). See Public Law 114–94, 129 Stat. K’’) under the Securities Act of 1933 1312 (Dec. 4, 2015) (requiring, among other things, as well as discourage repetition and (the ‘‘Securities Act’’) and the Securities that the SEC conduct a study, issue a report and disclosure of information that is not Exchange Act of 1934 (the ‘‘Exchange issue a proposed rule on the modernization and material. Act’’). simplification of Regulation S–K). In the Report on Modernization and Simplification of Regulation S– DATES: Comments should be received on Table of Contents K, the staff recommended that the Commission or before October 22, 2019. consider combining the description of material I. Introduction and Background physical properties required in Item 102 with the ADDRESSES : Comments may be II. Description of the Proposed Amendments description of business in Item 101(c). See Report submitted by any of the following A. General Development of Business (Item on Modernization and Simplification of Regulation methods: 101(a)) S–K (Nov. 23, 2016), available at https:// B. Narrative Description of Business (Item www.sec.gov/reportspubs/sec-fast-act-report- Electronic Comments 101(c)) 2016.pdf. The Commission considered the staff • C. Legal Proceedings (Item 103) recommendation, but did not propose to combine Use the Commission’s internet Item 102 with Item 101. See FAST Act comment form (https://www.sec.gov/ D. Risk Factors (Item 105) Modernization and Simplification of Regulation S– rules/proposed.shtml); or III. General Request for Comments K, Release No. 33–10425 ((Oct. 11, 2017) [82 FR IV. Economic Analysis • Send an email to rule-comments@ 50988 (Nov. 2, 2017)]. Instead, the Commission A. Baseline and Affected Parties adopted amendments to Item 102 to emphasize the sec.gov. Please include File Number S7– B. Potential Costs and Benefits materiality standard applicable to that disclosure, 11–19 on the subject line. C. Anticipated Effects on Efficiency, while preserving the industry-specific instructions Competition, and Capital Formation to that Item. See FAST Act Modernization and Paper Comments D. Alternatives Simplification of Regulation S–K, Release No. 33– • Send paper comments to Vanessa E. Request for Comments 10618 (Mar. 20, 2019) [84 FR 12674 (April 2, 2019)] V. Paperwork Reduction Act (‘‘FAST Act Adopting Release’’). We believe that, in A. Countryman, Secretary, Securities light of our proposed amendments to Item 101, and Exchange Commission, 100 F Street A. Summary of the Collections of combining the two items would not improve NE, Washington, DC 20549–1090. Information registrants’ business disclosure or simplify B. Summary of the Proposed Amendments’ compliance. All submissions should refer to File Effects on the Collections of Information 2 Public Law 112–106, Sec. 108, 126 Stat. 306 Number S7–11–19. This file number C. Incremental and Aggregate Burden and (2012). Section 108 of the JOBS Act required the should be included on the subject line Cost Estimates for the Proposed Commission to conduct a review of Regulation S– if email is used. To help us process and Amendments K to determine how such requirements can be review your comments more efficiently, VI. Regulatory Flexibility Act Certification updated to modernize and simplify the registration VII. Small Business Regulatory Enforcement process for emerging growth companies. please use only one method. We will 3 Fairness Act See Report on Review of Disclosure post all comments on our internet VIII. Statutory Authority and Text of Requirements in Regulation S–K (Dec. 2013), website (https://www.sec.gov/rules/ Proposed Rule and Form Amendments available at https://www.sec.gov/news/studies/ proposed.shtml). Comments are also 2013/reg-sk-disclosure-requirements-review.pdf I. Introduction and Background (‘‘S–K Study’’). available for website viewing and 4 See SEC Spotlight on Disclosure Effectiveness, printing in our Public Reference Room, We are proposing amendments to available at https://www.sec.gov/spotlight/ 100 F Street NE, Washington, DC 20549 modernize the description of business disclosure-effectiveness.shtml.

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In connection with the S–K Study and expanded and reorganized Regulation in the Concept Release, emphasizing the launch of the Disclosure S–K to be the central repository for its principles-based disclosure may allow a Effectiveness Initiative, the Commission non-financial statement disclosure registrant to more effectively tailor its staff received public input on how to requirements.9 The Commission’s goals disclosure to provide the information improve registrant disclosures.5 In a in adopting integrated disclosure were about its specific business and financial separate Concept Release issued in to revise or eliminate overlapping or condition that is material to an 2016,6 the Commission staff revisited unnecessary disclosure requirements investment decision and in turn may the business and financial disclosure wherever possible, thereby reducing reduce the amount of disclosure that requirements in Regulation S–K and burdens on registrants and enhancing may be irrelevant, outdated or requested public comment on whether readability without affecting the immaterial.14 they provide the information that provision of information material to an In contrast, some line-item investors need to make informed investment decision.10 requirements in Regulation S–K employ investment and voting decisions, and The Commission adopted line-item bright-line, quantitative thresholds to whether any of our rules have become requirements in Regulation S–K to elicit specify when disclosure is required, or outdated or unnecessary. specific disclosure within broad require all registrants to disclose the In developing the proposed categories of information material to an same type of information. These amendments, we considered input from investment decision. Some of these requirements are sometimes referred to comment letters we received in requirements provide registrants with as ‘‘prescriptive’’ disclosure response to these disclosure the flexibility to determine the requirements because they do not rely modernization efforts.7 We also took disclosure that is material to an on management’s judgment to into account the staff’s experience with investment decision.11 These disclosure determine when disclosure is required. Regulation S–K arising from the requirements are often referred to as The benefits of prescriptive disclosure Division of Corporation Finance’s ‘‘principles-based’’ because they requirements can include comparability, disclosure review program and changes articulate a disclosure concept rather consistency, and ease in determining 12 in the regulatory and business than a specific line-item requirement. when information must be disclosed.15 landscape since the adoption of Principles-based rules rely on a The Concept Release sought input on Regulation S–K. registrant’s management to evaluate the whether our disclosure requirements Regulation S–K was adopted in 1977 significance of information in the should be more principles-based, to foster uniform and integrated context of the registrant’s overall prescriptive, or a combination of both. disclosure for registration statements business and financial circumstances Many commenters supported a more under both the Securities Act and the and to determine whether disclosure is principles-based approach 16 while 13 Exchange Act, and other Exchange Act necessary. As the Commission stated course, subject to challenge or question by the filings, including periodic and current _ _ 8 collection/papers/1970/1977 1103 Commission or in the courts.’’). reports. In 1982, the Commission AdvisoryDisclosure.pdf. This version of Regulation 14 See Concept Release, supra note 6. S–K included only two disclosure requirements— 15 See id. For a discussion of the potential 5 In connection with the S–K Study, we received a description of business and a description of economic effects of switching from a prescriptive to public comments on regulatory initiatives to be properties. See Concept Release, supra note 6, and a more principles-based disclosure requirement, undertaken in response to the JOBS Act. See accompanying text. including a potential loss of comparability, see infra Comments on SEC Regulatory Initiatives Under the 9 See Adoption of Integrated Disclosure System, Sections IV.B.1 and 2 and IV.D. JOBS Act: Title I—Review of Regulation S–K, Release No. 33–6383 (Mar. 3, 1982) [47 FR 11380 16 See letters from R.G. Associates, Inc. (July 6, available at http://www.sec.gov/comments/jobs- (Mar. 16, 1982)] (‘‘1982 Integrated Disclosure 2016) (‘‘RGA’’), American Bankers Association (July title-i/reviewreg-sk/reviewreg-sk.shtml. To facilitate Adopting Release’’). 15, 2016), Deloitte & Touche LLP (July 15, 2016) public input on the Disclosure Effectiveness 10 See id. (‘‘Deloitte’’), New York State Society of Certified Initiative, members of the public were invited to 11 On several occasions, the Commission has Public Accountants (July 19, 2016) (‘‘NYSSCPA’’), submit comments. See Request for Public Comment, reiterated that its requirements seek disclosure of U.S. Chamber of Commerce (July 20, 2016) available at http://www.sec.gov/spotlight/ information material to an investment decision. (‘‘Chamber’’), BDO USA LLP (July 20, 2016) disclosure-effectiveness.shtml. Public comments See, e.g., Commission Guidance Regarding (‘‘BDO’’), Corporate Governance Coalition for received to date on the topic of Disclosure Disclosure Related to Climate Change, Release No. Investor Value (July 20, 2016) (‘‘CGCIV’’), Effectiveness are available on our website. See 33–9106 (Feb. 8, 2010) [75 FR 6290 (Feb. 8, 2010)] International Integrated Reporting Council (July 20, Comments on Disclosure Effectiveness, available at (‘‘Climate Change Release’’) at 6292–6293 2016) (‘‘IIRC’’), Railpen Investments (July 21, 2016) https://www.sec.gov/comments/disclosure- (reiterating that information is material if there is (‘‘Railpen’’), National Association of Manufacturers effectiveness/disclosureeffectiveness.shtml. We a substantial likelihood that a reasonable investor (July 21, 2016) (‘‘NAM’’), American Chemistry refer to these letters throughout as ‘‘Disclosure would consider it important in deciding how to Council (July 19, 2016) (‘‘ACC’’), The American Effectiveness’’ letters. vote or make an investment decision, or, put Petroleum Institute (July 21, 2018) (‘‘API’’), 6 See Business and Financial Disclosure Required another way, if the information would alter the total Business Roundtable (July 21, 2016), UnitedHealth by Regulation S–K, Release No. 33–10064 (Apr. 13, mix of available information); Statement of the Group, Inc. (July 21, 2016) (‘‘United Health’’), 2016) [81 FR 23915 (Apr. 22, 2016)] (‘‘Concept Commission Regarding Disclosure of Year 2000 Center for Audit Quality (July 21, 2016) (‘‘CAQ’’), Release’’). Issues and Consequences by Public Companies, Securities Industry and Financial Markets 7 Unless otherwise indicated, comments cited in Investment Advisers, Investment Companies, and Association (July 21, 2016) (‘‘SIFMA’’), Ernst & this release are to the public comments on the Municipal Securities Issuers, Release No. 33–7558 Young LLP (July 21, 2016) (‘‘E&Y’’), PNC Financial Concept Release, supra note 6, which are available (July 29, 1998) [63 FR 41394 (Aug. 4, 1998)] at Services Group (July 21, 2016) (‘‘PNC’’), Edison at https://www.sec.gov/comments/s7-06-16/ 41395 (stating that our disclosure framework Electric Institute and American Gas Association s70616.htm. requires companies to disclose material information (July 21, 2016) (‘‘EEI and AGA’’), Grant Thornton 8 The Commission adopted the initial version of that enables investors to make informed investment LLP (July 21, 2016) (‘‘Grant’’), KPMG LLP (July 21, Regulation S–K following issuance of the report by decisions). 2016) (‘‘KPMG’’), PricewaterhouseCoopers LLP the Advisory Committee on Corporate Disclosure 12 See Executive Compensation and Related (July 21, 2016) (‘‘PWC’’), Cornerstone Capital Inc. led by former Commissioner A.A. Sommer, Jr., Person Disclosure, Release No. 33–8732A (Aug. 29, (July 21, 2016) (‘‘Cornerstone’’), Crowe Horwath which recommended adoption of a single integrated 2006) [71 FR 53157 (Sept. 8, 2006)] (‘‘As described LLP (July 21, 2016) (‘‘Crowe’’), America Gas disclosure system. See Report of the Advisory in the Proposing Release and as adopted, the Association (July 21, 2016) (‘‘AGA’’), Prologis, Inc. Committee on Corporate Disclosure to the Securities Compensation Discussion and Analysis (July 21, 2016) (‘‘Prologis’’), National Association of and Exchange Commission, Cmte. Print 95–29, requirement is principles-based, in that it identifies Real Estate Investment Trusts (July 21, 2016) House Cmte. On Interstate and Foreign Commerce, the disclosure concept and provides several (‘‘NAREIT’’), Allstate Insurance Company (July 21, 95th Cong., 1st. Sess (Nov. 3, 1977) (‘‘Report of the illustrative examples.’’). 2016) (‘‘Allstate’’), Davis Polk & Wardwell LLP (July Advisory Committee’’), available at http:// 13 See Report of the Advisory Committee, supra 22, 2016) (‘‘Davis’’), Chevron Corporation (July 22, 3197d6d14b5f19f2f440-5e13d29c4c016cf note 8 (‘‘Although the initial materiality 2016) (‘‘Chevron’’), Fenwick West LLP (Aug. 1, 96cbbfd197c579b45.r81.cf1.rackcdn.com/ determination is management’s, this judgment is, of Continued

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other commenters supported some protection laws that was set in 1982.20 Æ Disclosure of information combination of both principles-based Further, numerous commenters cited material 23 to an understanding of the and prescriptive rules.17 the risk factor disclosure requirements general development of the business We are proposing amendments to as needing improvement.21 We believe and eliminating a prescribed timeframe Items 101, 103, and 105 18 in light of the that modernizing these disclosure items for this disclosure; and many changes that have occurred in our would result in improved disclosure, Æ In filings made after a registrant’s capital markets and the domestic and tailored to reflect registrants’ particular initial filing, only an update of the global economy in the more than 30 circumstances, and reduce disclosure general development of the business years since their adoption, including costs and burdens. with a focus on material developments changes in the mix of businesses that For each of the disclosure in the reporting period with a hyperlink participate in our public markets, to the registrant’s most recent filing requirements addressed in this release, changes in the way businesses operate, (e.g., initial registration statement or we considered the merits and which may affect the relevance of more recent filing if one exists) that, drawbacks of pursuing a principles- current disclosure requirements, together with the update, would contain based versus prescriptive approach. We changes in technology (in particular the the full discussion of the general also considered each requirement as a availability of information), and changes development of the registrant’s component of a broader framework that such as inflation that have occurred business. simply with the passage of time.19 For will achieve the disclosure objectives of • Revise Item 101(c) to: example, Item 101 mandates certain the Securities Act and the Exchange Act Æ Clarify and expand its principles- disclosures that may be outdated while in the most effective and efficient based approach, with disclosure topics Item 103 includes a dollar threshold for manner. As discussed in greater detail drawn from a subset of the topics proceedings related to environmental in Section II below, we propose to revise currently contained in Item 101(c); Items 101(a) (description of the general Æ Include, as a disclosure topic, 2016) (‘‘Fenwick’’), Reardon Firm (Aug. 3, 2016) development of the business), 101(c) human capital resources, including any (‘‘Reardon’’), National Investor Relations Institute (narrative description of the business), human capital measures or objectives (Aug. 4, 2016) (‘‘NIRI’’), Sullivan & Cromwell LLP and 105 (risk factors) to emphasize a (Aug. 9, 2016), Exxon Mobil Corporation (Aug. 9, that management focuses on in 2016), FedEx Corporation (July 21, 2016) (‘‘FedEx’’), principles-based approach because the managing the business, to the extent Institute of Management Accountants (July 29, current disclosure requirements may not such disclosures would be material to 2016), Shearman & Sterling LLP (Aug. 31, 2016) reflect what is material to every (‘‘Shearman’’), Nasdaq, Inc. (Sept. 16, 2016) an understanding of the registrant’s (‘‘Nasdaq’’), Northrop Grumman Corporation (Sept. business, and, as past developments business; and 27, 2016), General Motors Company (Sept. 30, 2016) have demonstrated, disclosure Æ Refocus the regulatory compliance (‘‘General Motors’’) and Financial Executives requirements, and in particular requirement by including material International (Oct. 3, 2016) (‘‘Financial Executives prescriptive disclosure requirements, International’’). government regulations, not just 17 See letters from Council of Institutional can become outdated in these areas. We environmental laws, as a topic. Investors (July 8, 2016) (‘‘CII’’), Railpen, New York believe this approach would elicit more • Revise Item 103 to: State Comptroller (July 21, 2016) (‘‘NYSC’’), relevant disclosures about these items. Æ Expressly state that the required California State Teachers’ Retirement System (July In contrast, we are proposing a more information may be provided by 21, 2016) (‘‘CalSTRS’’), Pension Investment Association of Canada (July 17, 2016), Medical prescriptive approach for Item 103 including hyperlinks or cross-references Benefits Trust (July 15, 2016) (‘‘Medical Benefits because that requirement depends less to legal proceedings disclosure located Trust’’), Principles for Responsible Investment (July on the specific characteristics of elsewhere in the document in an effort 19, 2016) (‘‘PRI’’), Legal & General Investment individual registrants. to encourage registrants to avoid Management (July 20, 2016) (‘‘LGIM’’), Walden Asset Management (July 19, 2016) (‘‘Walden’’), SEC Our proposed amendments would: 22 duplicative disclosure; and Æ Revise the $100,000 threshold for Investor Advisory Committee (June 15, 2016) • (‘‘IAC’’), AFLAC (July 19, 2016) (‘‘AFLAC’’), Domini Revise Item 101(a) to be largely disclosure of environmental Social Investments LLC (July 21, 2016) (‘‘Domini principles-based, requiring: proceedings to which the government is Social’’), NYC Comptroller (July 21, 2016) (‘‘NYC Comptroller’’), AFL–CIO (July 21, 2016) (‘‘AFL– a party to $300,000 to adjust for 20 CIO’’), California Public Employees’ Retirement See id. inflation. System (July 21, 2016) (‘‘CalPERS’’), British 21 See, e.g., letters from CAQ, AFLAC, Chamber, • Revise Item 105 to: Columbia Investment Management Corporation FedEx, CGCIV, NAM, ACC, SIFMA, E&Y, EEI and Æ Require summary risk factor (July 21, 2016), Stephen Percoco (July 24, 2016) (‘‘S. AGA, Wilson Sonsini Goodrich & Rosati (July 21, Percoco’’), Americans for Financial Reform (Aug. 2016) (‘‘Wilson Sonsini’’), NAREIT, Davis, Fenwick, disclosure if the risk factor section 10, 2016) (‘‘Americans for Financial Reform’’) and NIRI, Shearman, PWC, General Motors, and exceeds 15 pages; CFA Institute (Oct. 6, 2016) (‘‘CFA Institute’’). Four Financial Executives International. Æ Refine the principles-based commenters supported a combination that 22 We are also proposing amendments to Item approach of Item 105 by changing the emphasized a principles-based approach (Walden, 101(h) of Regulation S–K [17 CFR 229.101(h)], AFLAC, Ball Corporation (July 19, 2016) (‘‘Ball which permits a smaller reporting company to disclosure standard from the ‘‘most Corporation’’) and S. Percoco) and seven fulfill its disclosure obligations under Item 101, significant’’ factors to the ‘‘material’’ commenters supported a combination that including with respect to its business development, factors; and emphasized a prescriptive approach (IAC, NYC by providing the disclosure specified under Æ Require risk factors to be organized Comptroller, American Federation of State, County paragraph (h). ‘‘Smaller reporting company’’ is and Municipal Employees (July 21, 2016) defined in 17 CFR 229.10(f) as an issuer that is not under relevant headings, with any risk (‘‘AFSCME’’), Maryland State Bar Association (July an investment company, an asset-backed issuer (as factors that may generally apply to an 21, 2016) (‘‘Maryland Bar Securities Committee’’), defined in 17 CFR 229.1101), or a majority-owned investment in securities disclosed at the AFL–CIO, Americans for Financial Reform and CFA subsidiary of a parent that is not a smaller reporting end of the risk factor section under a Institute). company and that: (i) Had a public float of less than 24 18 The Commission recently rescinded Item $250 million; or (ii) had annual revenues of less separate caption. 503(c) of Regulation S–K and replaced it with new than $100 million and either: (A) No public float; Item 105 of Regulation S–K. See FAST Act or (B) a public float of less than $700 million. 23 Information is material if there is a substantial Adopting Release, supra note 1. Business development companies, which are a type likelihood that a reasonable investor would 19 See infra note 279 (noting that while Items 101, of investment company, are not eligible to be consider the information important in deciding how 103, and 105 have not undergone significant smaller reporting companies. See, e.g., Smaller to vote or make an investment decision. See supra revisions in over 30 years, many characteristics of Reporting Company Regulatory Relief and note 14 and accompanying text. the registrants have changed substantially over this Simplification, Release No. 33–8819 [(July 5, 2007) 24 The proposed amendments to Items 101 and time period). [72 FR 39670 (July 19, 2007)], at 39674. 103 will affect only domestic registrants and

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We welcome feedback and encourage eliminating or streamlining the (such as a filer information page on the interested parties to submit comments requirements in Item 101(a).28 Several company’s website) with updates only on any or all aspects of the proposed of these commenters recommended required every three years or more amendments. When commenting, it limiting Item 101(a) disclosure to frequently if there has been a substantial would be most helpful if you include material developments,29 and a few change.35 One of these commenters the reasoning behind your position or commenters supported executive suggested linking the timeframe to the recommendation. summaries and layering techniques for two years presented in the financial the business section.30 II. Description of the Proposed statements to allow users to focus on In light of the feedback received, we 36 Amendments material events in the current period. are proposing amendments to Item Some of these commenters noted that A. General Development of Business 101(a)(1) that would provide more this information does not change (Item 101(a)) flexibility to tailor disclosures to the significantly from year to year and Item 101(a) of Regulation S–K unique circumstances of each registrant, indicated that repeating these requires a description of the general which in turn could result in improved disclosures each year, especially for development of the business of the disclosures for investors. In addition, for well-established companies, provides registrant during the past five years, or filings other than initial registration limited value to investors and may such shorter period as the registrant statements, we are proposing to require potentially obscure or distract from may have been engaged in business.25 In only material updates to this disclosure. more important information included in describing the general development of 1. Eliminate Prescribed Timeframe the document.37 the business, Item 101(a)(1) requires We do not think it is necessary to Item 101(a) requires a description of prescribe a timeframe for which disclosure of the following: the general development of the • The year in which the registrant registrants should provide disclosure registrant’s business during the past five was organized and its form of regarding the general development of years, or such shorter period as the organization; their business. The currently required • registrant may have engaged in The nature and results of any 31 five-year timeframe may not elicit the bankruptcy, receivership or similar business. A requirement to provide a most relevant disclosure for every proceedings with respect to the brief outline of the general development registrant. Some registrants may prefer registrant or any of its significant of the business for the preceding five to describe the development of their subsidiaries; years was included in the earliest form business over a longer period in order • The nature and results of any other requirements for registration statements to provide the information that may be and annual reports,32 and the first material reclassification, merger or material to an investment decision, version of Regulation S–K adopted in consolidation of the registrant or any of while others may conclude that the 1977 included a requirement to describe its significant subsidiaries; material aspects of their business the development of the registrant’s • The acquisition or disposition of development can be described over a business during the prior five years, or any material amount of assets otherwise shorter timeframe. We are proposing to such shorter period as the registrant than in the ordinary course of business; revise Item 101(a) to eliminate the five- may have been in business.33 and year disclosure timeframe and require • The Concept Release solicited Any material changes in the mode registrants to focus on the information of conducting the business.26 comments on whether the current five- year timeframe for this disclosure is material to an understanding of the The Concept Release solicited input development of their business, on whether the disclosure provided appropriate, or whether a shorter or longer timeframe should be irrespective of a specific timeframe. For under this Item continues to be useful similar reasons, we are also proposing to 27 considered.34 Several commenters and how this Item might be improved. revise Item 101(h) to eliminate the A number of commenters recommended recommended reducing the five-year timeframe for disclosure to a two- or provision that currently requires smaller reporting companies to describe the ‘‘foreign private issuers’’ that have elected to file on three-year timeframe, or permitting domestic forms. This is because Regulation S–K well-established companies to provide development of their business during 38 does not apply to foreign private issuers unless a the information through other means the last three years. We believe that form reserved for foreign private issuers (such as these proposed revisions would result Securities Act Form F–1, F–3, or F–4) specifically 28 in disclosure of information that is refers to Regulation S–K. Instead of Items 101 and See letters from Allstate, Chamber, FedEx, 103, the foreign private issuer forms refer to Part I CGCIV, EEI and AGA, Fenwick, NAREIT, NIRI, material to investors’ understanding of of Form 20–F. See, e.g., Item 4.a. of Form F–1. In NYSSCPA, PNC, SIFMA, Davis, General Motors, the development of a registrant’s contrast, the proposed amendment to Item 105 will and Financial Executives International. business while reducing outdated and 29 affect both domestic and foreign registrants because See letters from NAREIT, PNC, SIFMA, and irrelevant disclosure. Forms F–1, F–3, and F–4, like their domestic Fenwick. counterparts, all refer to that Item. See, e.g., Item 30 See letters from Deloitte and CAQ. 2. Require Only Updated Disclosure in 3 of Form F–1. A foreign private issuer is any 31 17 CFR 229.101(a). Subsequent Filings foreign issuer other than a foreign government, 32 See, e.g., Item 6 of Form A–2 adopted in 1935, except for an issuer that (1) has more than 50% of which required registrants to outline briefly ‘‘the Currently registrants are required to its outstanding voting securities held of record by general development of the business for the provide disclosure regarding the general U.S. residents; and (2) any of the following: (i) A preceding five years.’’ See Release No. 33–276 (Jan. development of the business in majority of its officers and directors are citizens or 14, 1935) [not published in the Federal Register]. residents of the United States; (ii) more than 50% Additionally, Item 5 of Form A–1, adopted in 1933, of its assets are located in the United States; or (iii) required registrants to briefly describe the length of 35 See letters from Allstate, NYSSCPA, and EEI its business is principally administered in the time the registrant had been engaged in its business. and AGA. United States. 17 CFR 230.405. See also 17 CFR See Release No. 33–5 (July 6, 1933) [not published 36 See letter from Allstate. 240.3b–4(c). in the Federal Register]. See also S–K Study, supra 37 See letters from EEI and AGA. 25 17 CFR 229.101(a). Item 101(a) states that note 3 at 32, n. 88. 38 We are proposing only to eliminate the information shall be disclosed for earlier periods if 33 See Adoption of Disclosure Regulation and required timeframe in Item 101(h). We are, material to an understanding of the general Amendments of Disclosure Forms and Rules, however, proposing to retain the requirement that development of the business. Release No. 33–5893 (Dec. 23, 1977) [42 FR 65554 if a smaller reporting company has not been in 26 17 CFR 229.101(a). (Dec. 30, 1977)]. business for three years, it must provide the same 27 See Concept Release, supra note 6, at 23932. 34 See Concept Release, supra note 6. information for its predecessors if there are any.

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registration statements and annual also propose to require that, pursuant to 3. Include Material Changes to Business reports.39 The Concept Release sought § 230.411 or § 240.12b–23, a registrant Strategy as Potential Disclosure Topic comment on whether to allow incorporate by reference, and include an We are proposing to amend Item 48 registrants to omit this disclosure from active hyperlink to, the most recently 101(a)(1) to be more principles-based by filings other than the initial Securities filed disclosure that, together with the providing a non-exclusive list of the or Exchange Act registration statement update, would present a full discussion types of information that a registrant filed by the registrant and instead of the general development of its may need to disclose, and by requiring disclose only material changes in business.49 Under this approach, a disclosure of a topic only to the extent 40 subsequent reports. reader would have access to a full such information is material to an Several commenters recommended discussion by reviewing the updated understanding of the general revising the requirement to distinguish disclosure and one hyperlinked development of a registrant’s business.55 between new and established disclosure.50 As noted by one We believe that such an approach registrants, stating that much of the commenter, registrants often repeat would elicit material disclosure for disclosure required under this Item is information from year-to-year in annual investors while also providing the redundant for registrants already subject reports on Form 10–K,51 with this flexibility to tailor the disclosure to 41 to the reporting requirements. Many of disclosure changing very little from reflect the circumstances of each these commenters supported limiting filing to filing.52 This commenter also registrant. the full disclosure required by Item observed that there is no need for Three of the four matters that we are 101(a) to the initial filing and only registrants to include this disclosure in proposing to list as disclosure topics are requiring disclosure of material changes both registration statements and annual currently covered in Item 101(a)(1): in subsequent filings,42 with a few of reports as investors can easily access • Material bankruptcy, receivership, these commenters supporting the use of information about the general or any similar proceeding; cross-references or hyperlinks to either development of business through • The nature and effects of any the prior full disclosure or the relevant company websites or the Commission’s material reclassification, merger or Form 8–K 43 reports of material EDGAR system, which was not the case consolidation of the registrant or any of developments.44 A few commenters when Regulation S–K was first its significant subsidiaries; and opposed limiting the full disclosure adopted.53 Because repetitive • The acquisition or disposition of required by Items 101(a) and 101(c) to information may obscure more any material amount of assets otherwise initial filings with follow-up disclosure important information, we believe the than in the ordinary course of business. of material changes in subsequent proposed amendments would help We are also proposing to include as a filings based on the belief that such a focus investor attention on material listed disclosure topic, to the extent revision would require investors to developments in the reporting period. material to an understanding of the search through multiple filings in a By also requiring that a registrant use registrant’s business, transactions and time-consuming attempt to understand one hyperlink to connect the updated events that affect or may affect the the current state of a registrant’s disclosure with the previous disclosure, company’s operations, including business development and operations.45 which together would result in a full material changes to a registrant’s We propose to retain the requirement discussion of its general business previously disclosed business strategy. for registrants to describe the general development, the amendment as Item 101(a) does not currently require development of the business in initial proposed would help limit any disclosure of material changes to a registration statements under the burdensome effect on investors caused registrant’s previously disclosed 46 Securities Act and Exchange Act. For by this discussion being located in more business strategy. The Concept Release filings subsequent to a registrant’s initial than one document.54 solicited input on whether Item 101(a) registration statement, we propose should be revised to require the revising Item 101(a)(1) to require an a filing made subsequent to a registrant’s initial disclosure of a registrant’s business update of this disclosure, with a focus registration statement is a clarification of our strategy; whether investors would find on material developments, if any, in the existing rules rather than a substantive change. such disclosure important or useful and, reporting period, including if the 48 The SEC Investor Advisory Committee has if so, whether this requirement should business strategy has changed.47 We recommended the use of hyperlinks to reduce redundant disclosure in SEC filings. See letter from be included in Management’s 56 IAC. Discussion and Analysis (‘‘MD&A’’); 39 See 17 CFR 229.101(a). 49 The Commission recently revised Rules 411 and whether ‘‘business strategy’’ should 40 See Concept Release, supra note 6. and 12b–23 to require the inclusion of an active be defined.57 Commenters were divided 41 See letters from Chamber, FedEx, CGCIV, EEI hyperlink to information incorporated into a on whether disclosure of a registrant’s and AGA, PNC, and SIFMA. registration statement or report by reference if such 42 See letters from SIFMA, PNC, Allstate, and information is publicly available on the business strategy should be a Fenwick. Commission’s Electronic Data Gathering, Analysis, requirement.58 Most of the commenters 43 17 CFR 249.308. and Retrieval system (‘‘EDGAR’’). See FAST Act 44 See letters from SIFMA and PNC. Adopting Release, supra note 1 at 12694–12695. 55 Proposed Item 101(a) refers to materiality in the 45 See letter from Maryland Bar Securities 50 Alternatively, a registrant may elect to provide introductory language of paragraph (a)(1). While Committee; see also letter from RGA (stating that it a complete discussion of its business development, materiality is repeated in three of the four listed is not always possible to fully understand a including material updates, in which case no topics that follow, this is not intended to create a registrant’s business if its business development hyperlink would be required. second or different analysis regarding materiality must be ascertained from a variety of sources). 51 17 CFR 249.310. for any such topic. 46 Although, as discussed below, we propose to 52 See letter from PNC. 56 Item 303(a) [17 CFR 229.303(a)]. amend Item 101(a)(1), we are retaining Item 53 See id. 57 See Concept Release, supra note 6. 101(a)(2) and redesignating it as Item 101(a)(3). 54 For similar reasons, we are proposing to permit 58 Several commenters supported requiring 47 Registrants are currently permitted to provide a smaller reporting company, for filings other than disclosure of a registrant’s business strategy. See, Item 101(a) disclosure by incorporating by reference initial registration statements, to provide an update e.g., letters from IIRC, NEI Investments (July 21, some or all of the required disclosure from a to the general development of the business 2016), NYSSCPA, PRI, S. Percoco, AFL–CIO and previous filing pursuant to Securities Act Rule 411 disclosure, instead of a full discussion, that International Corporate Accountability Roundtable (17 CFR 230.411) or Exchange Act Rule 12b–23 (17 complies with proposed Item 101(a)(2), including (July 19, 2016). Other commenters opposed CFR 240.12b–23). Therefore, our proposal to require the proposed hyperlink requirement. See the requiring disclosure of a registrant’s business only an update of the Item 101(a)(1) disclosure in proposed amendment of Item 101(h). strategy. See letters from Allstate, Fenwick,

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that opposed a mandatory business we require the incorporation by company if there are any. Should we strategy disclosure requirement did so reference of, and active hyperlink to, the eliminate or adjust this predecessor on the grounds that because a most recently filed disclosure that, disclosure requirement for smaller registrant’s business strategy could be together with the update, would present reporting companies? A registrant that is proprietary, its disclosure could cause a full discussion of the general not a smaller reporting company must competitive harm.59 development of a registrant’s business, also provide information about its Many registrants currently include as proposed? Would such an approach, predecessors in certain circumstances disclosure regarding their business which would enable a reader to review under current Item 101(a)(2). Should we strategy in their initial registration the updated disclosure and one eliminate the predecessor disclosure statements. We believe that information hyperlinked disclosure, facilitate an obligations for those registrants? regarding material changes to a investor’s understanding of the general 11. Should we permit certain previously disclosed business strategy development of a registrant’s business? registrants to provide the general may be material information for 5. Would registrants find it difficult to business development disclosure by investors. We are therefore proposing to apply the proposed principles-based other means (e.g., by a filer information include material changes to a requirements? How could we alleviate page on the company’s website)? If so, registrant’s previously disclosed any expected difficulties? which registrants? Should we limit the business strategy as a listed disclosure 6. Would principles-based use of such alternative means to well- topic under Item 101(a). However, if a requirements for Item 101(a) effectively known seasoned issuers? Are there registrant has not previously disclosed facilitate the provision of information concerns raised by the posting of the its business strategy, we are not that is material to an investment disclosure on a company’s website (e.g., proposing to make the disclosure of that decision? If not, how might Item 101(a) regarding how long the company must strategy mandatory in a Commission be further improved? retain the business development filing because of the concerns raised by 7. Should we provide a list of topics disclosure, when it must update the commenters that such a requirement that may be material to an disclosure, and liability issues)? If so, could force registrants to disclose understanding of a registrant’s business how should those concerns be resolved? proprietary information that could be development, as proposed? Are the harmful to their competitive position.60 proposed topics (transactions and B. Narrative Description of Business To the extent that other matters events that affect or may affect the (Item 101(c)) beyond those listed in the amended company’s operations, including Item 101(c) requires a narrative item are material to an understanding of material changes to a previously description of the business done and the general development of a registrant’s disclosed business strategy; bankruptcy, intended to be done by the registrant business, the registrant would be receivership, or any similar proceeding; and its subsidiaries, focusing upon the required to disclose those matters as the nature and effects of any other registrant’s dominant segment or each well. material reclassification, merger or reportable segment about which consolidation of the registrant or any of financial information is presented in the Request for Comment its significant subsidiaries; and the financial statements. To the extent 1. Is a prescribed timeframe for acquisition or disposition of a material material to an understanding of the disclosure regarding the general amount of assets other than in the registrant’s business taken as a whole, development of a registrant’s business ordinary course of business) the description of each such segment necessary or desirable? If we should appropriate? Should we exclude any of must include ten specific items listed in retain a prescribed timeframe, is the our proposed topics? Are there other Item 101(c) (see Items (1)–(10) in the list current five-year timeframe appropriate, topics that should be added (e.g., below). Item 101(c) specifies two other or should it be longer or shorter? material changes in the mode of items that must be discussed with 2. Alternatively, should we require a conducting the business)? Should we respect to the registrant’s business in more detailed discussion of a require disclosure of any or all of the general (see Items (11)–(12) in the list registrant’s general development of proposed topics in all circumstances? below), although, where material, the business on a periodic basis, such as 8. Should we make disclosure of registrant must also identify the every three years, and summary business strategy mandatory in segments to which those matters are disclosure in other years? If so, would Commission filings? If so, how should significant: 61 three years be an appropriate period, or ‘‘business strategy’’ be defined and what (1) Principal products produced and should it be shorter or longer? can we do to address concerns about services rendered; 3. For filings other than initial confidentiality? (2) New products or segments; registration statements, should we no 9. Should we revise Item 101(h) to (3) Sources and availability of raw longer require a full discussion of the eliminate the provision that currently materials; general development of the registrant’s requires smaller reporting companies to (4) Intellectual property; business, and require instead an update describe the development of their (5) Seasonality of the business; to the general development of the business during the last three years, as (6) Working capital practices; business disclosure with a focus on proposed? Is a prescribed timeframe for (7) Dependence on certain customers; material developments in the reporting such disclosure necessary or desirable? (8) Dollar amount of backlog orders period, as proposed? If we should retain a prescribed believed to be firm; 4. When only updated business timeframe, is the current three-year disclosure is provided in a filing, should timeframe appropriate, or should it be 61 Item 101(c)(1) [17 CFR 229.101(c)(1)] specifies that, to the extent material to an understanding of longer or shorter? the registrant’s business taken as a whole, the Maryland Bar Securities Committee and CFA 10. We are proposing to retain the description of each segment must include the Institute, although CFA Institute supported current requirement in Item 101(h) that information specified in paragraphs (c)(i) through voluntary disclosure of a registrant’s business if a smaller reporting company has not (x). Information in paragraphs (c)(xi) through (xiii) strategy. is required to be discussed for the registrant’s 59 See letters from Allstate, Fenwick, and been in business for three years, it must business in general; where material, the segments Maryland Bar Securities Committee. provide the same information for to which these matters are significant also must be 60 See, e.g., letter from Fenwick. predecessor(s) of the smaller reporting identified.

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(9) Business subject to renegotiation Item’s requirements may be improved.68 from Item 101(c) because it is typically or termination of government contracts; In particular, the Concept Release addressed in MD&A.78 In addition to (10) Competitive conditions; sought comment on the impact of listing being explicitly identified as a (11) The material effects of the then thirteen requirements and disclosure item in Item 101(c) for all compliance with environmental laws; whether the prescriptive items result in registrants, Instruction 5 to Item 303(a) and disclosure of information that is not states that a discussion of working (12) Number of employees.62 important to some registrants.69 capital may be appropriate in MD&A for The earliest forms of registration A number of commenters certain registrants.79 In an effort to statements and annual reports required recommended revising Item 101(c) to consolidate working capital disclosure a brief outline of the general character make it more principles-based.70 A few in one location and to avoid duplicative of the business done and intended to be commenters recommended emphasizing disclosure, we do not propose to done by a registrant.63 Many of the that the sub-items enumerated in Item include working capital practices as a enumerated disclosure requirements in 101(c) are examples only,71 while possible topic in Item 101(c) with the Item 101(c) were adopted in 1973.64 The another commenter recommended expectation that working capital would 1973 adopting release noted that, in revising the Item to specify that be discussed in a registrant’s MD&A, to making investment decisions, venture registrants should consider whether the extent material. capitalists and underwriters typically information that does not fall into the To facilitate application of our obtained specific information from enumerated examples should principles-based revisions to Item 101, companies about their competitive nonetheless be disclosed.72 Some we propose to include in Item 101(c) the position and methods of competition in commenters recommended retaining the non-exclusive list of disclosure topics their respective industries and, Item as it currently stands.73 discussed below.80 We believe that the accordingly, the new requirements were Because the 12 items may not be proposed topics would likely be expected to provide similar information relevant to all registrants, they can elicit material to many registrants and, thus, to the investing public.65 At the same disclosure that is not material to a would facilitate the disclosure of time, the Commission also added particular registrant. For the most part, information material to an investment requirements for the disclosure of the Item 101(c) currently provides that a decision while providing flexibility to amount of backlog orders, the sources registrant must disclose the enumerated tailor disclosure to the specific and availability of raw materials items to the extent material to an circumstances of each registrant. The essential to the business, the number of understanding of the registrant’s proposed topics would not be line-item employees and working capital business taken as a whole. Based on the requirements, but to the extent that a practices.66 comments received that were critical of 74 topic is material to an understanding of In the S–K Study, the staff this provision, it appears, however, a registrant’s business, disclosure would that many registrants may interpret Item recommended reviewing the description be required.81 101(c) as requiring disclosure of each of business for continuing relevance in Under our proposal, the revised rule enumerated item, even if it is not light of changes that have occurred in would not explicitly reference some of material. We believe that shifting to an the way businesses operate, which may the disclosure requirements currently updated and more principles-based make other disclosures relevant that are contained in Item 101(c). In addition to disclosure framework for Item 101(c) not expressly addressed under the working capital practices, the proposed 67 would encourage registrants to exercise current requirements. The Concept amendments would no longer list the judgment in evaluating what disclosure Release sought comment on whether following topics: Disclosure about new to provide, which would result in Item 101(c) continues to provide useful segments and dollar amount of backlog information to investors and how the disclosure more appropriately tailored to a registrant’s specific facts and orders believed to be firm. Nevertheless, under the proposed principles-based 62 circumstances. The Commission recently removed and approach, registrants still would have to reserved Item 101(c)(1)(xi), which required The Concept Release further sought disclosure of company- and customer-sponsored comment on whether any of the current provide disclosure about these topics, as research and development activities, largely requirements in Item 101(c) should be well as any other topics regarding the because U.S. GAAP requires similar, but broader, registrants’ business, if they are material disclosure. See Disclosure Update and presented in a different context, such as 75 to an understanding of their business. Simplification Final Rule, Release No. 33–10532 MD&A or risk factors. A number of (Aug. 17, 2018) [83 FR 50148 (Oct. 4, 2018) commenters provided recommendations The proposal retains Item 101(c)’s (‘‘DUSTR Adopting Release’’). Thus, there currently on the requirement to disclose working distinction between disclosure topics are twelve enumerated disclosure items under Item capital practices.76 Several of these 101(c). 78 commenters stated that working capital See letter from Fenwick. 63 See, e.g., Item 5 of Form A–2 adopted in 1935, 79 Instruction 5 to Item 303(a) (‘‘For example, a which required registrants to outline briefly ‘‘the practices might be better addressed in discussion of working capital may be appropriate general character of the business done and intended MD&A,77 while one commenter for certain manufacturing, industrial or related to be done by the registrant and its subsidiaries.’’ suggested eliminating this disclosure operations but might be inappropriate for a bank or See Release No. 33–276 (Jan. 14, 1935) [not public utility.’’). published in the Federal Register]. Additionally, 80 68 We are not proposing to amend the more Items 3 through 5 of Form A–1, adopted in 1933, See Concept Release, supra note 6. 69 See id. prescriptive alternative disclosure standards required registrants to briefly describe ‘‘the regarding business development, description of 70 See letters from Chamber, FedEx, CGCIV, BDO, character of business done or intended to be done,’’ business, and other information specified under United Health, CAQ, SIFMA, E&Y, Grant, PWC, disclose a list of states where the issuer owned Item 101(h)(1) through (6). We believe that this Allstate, Davis, Fenwick, General Motors, Financial property and was qualified to do business, and the approach will continue to permit smaller reporting Executives International, and CFA Institute. length of time the registrant had been engaged in companies to provide a less detailed description of 71 See letters from SIFMA and Allstate. its business. See Release No. 33–5 (July 6, 1933) their business, consistent with the current scaled 72 [not published in the Federal Register]. See letter from SIFMA. disclosure requirements for these companies. 64 73 See New Ventures, Meaningful Disclosure, See letters from RGA, CalSTRS and S. Percoco. 81 Similar to Item 101(a), proposed Item 101(c) Release No. 33–5395 (June 1, 1973) [38 FR 17202 74 See supra note 70. refers to materiality in the introductory language of (June 29, 1973)]. 75 See Concept Release, supra note 6. paragraphs (c)(1) and (2). While materiality is 65 See id. 76 See letters from Chamber, FedEx, CGCIV, and repeated in some of the listed topics that follow, 66 See id. Fenwick. this is not intended to create a second or different 67 See S–K Study, supra note 3, at 99–100. 77 See letters from Chamber, FedEx, and CGCIV. analysis regarding materiality for any such topic.

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for which segment disclosure should be 2. Status of Development Efforts for importance, duration and effect of all the primary focus, and those for which New or Enhanced Products, Trends in patents, trademarks, licenses, the focus should be on the registrant’s Market Demand and Competitive franchises, and concessions held, each business taken as a whole. The proposal Conditions to the extent material to an clarifies, however, that, for any listed We continue to believe that disclosure understanding of the registrant’s topic, disclosure is required only to the regarding development efforts for new business taken as a whole.89 extent that it is material to an or enhanced products, and trends in As discussed in greater detail below, understanding of the registrant’s market demand and competition would we propose modernizing these business taken as a whole. generally be material to an investment disclosure requirements to refocus Similar to current Item 101(c), most of decision. In response to the Concept registrants’ disclosure on all resources the listed disclosure topics would fall Release, several commenters suggested material to their business. We believe into the category for which segment additional disclosure related to that this approach would elicit more disclosure would be required to the competitive conditions. One commenter informative disclosure tailored to the extent the topic is material to an recommended requiring disclosure of specific circumstances of each company understanding of the registrant’s or its industry. To facilitate application, 82 the registrant’s competitive landscape, business taken as a whole. We believe noting that companies not only compete we propose including (a) raw materials, that, for the topic regarding the material within their industry but also with and (b) patents, trademarks, licenses, effects of compliance with government entities external to their industry franchises and concessions held, as regulation, including environmental segment.86 Another commenter examples of resources that may be regulation, and the topic regarding supported greater disclosure of a material to a registrant’s business. human capital resources, the registrant’s competitive position and a. Raw Materials appropriate primary focus should be especially the market share of its with respect to the registrant’s business products, competitive landscape and Item 101(c)(1)(iii) currently requires taken as a whole. Similar to the current industry trends shaping the nature of disclosure of the sources and rule, however, if the information competition.87 Rather than prescribe availability of raw materials.90 In elicited regarding these two topics is additional disclosures for this topic that response to the Concept Release’s material to a particular segment, the must be provided in all circumstances, solicitation of feedback,91 we received registrant would additionally be several comment letters that specifically 83 we believe that a principles-based required to identify that segment. approach that allows flexibility for addressed the requirement to disclose 1. Revenue-Generating Activities, registrants to disclose this information the sources and availability of raw Products and/or Services, and any to the extent it is material to an materials.92 Two commenters Dependence on Key Products, Services, understanding of their business would recommended retaining this Product Families, or Customers, better accommodate the variety of requirement.93 One of these commenters Including Governmental Customers competitive conditions that registrants specified that the disclosure may face.88 requirement should be retained with a While we recognize that the twelve materiality overlay,94 while the other enumerated items in Item 101(c) may 3. Resources Material to a Registrant’s commenter stated that disclosure should not be relevant across all industries or Business only be required if raw materials are businesses, we continue to believe that Currently two of the twelve disclosure difficult to obtain.95 One commenter disclosure regarding revenue-generating requirements in Item 101(c) relate to stated that, where material, registrants activities, products and/or services, and registrants’ resources: Item 101(c)(1)(iii) generally discuss the specific sub-items any dependence on key products, requires disclosure of the sources and in Item 101(c), including sources and services, product families, or customers, availability of raw materials, and Item availability of raw materials, in the including governmental customers, 101(c)(1)(iv) requires disclosure of the business narrative or elsewhere, would generally be material to an including MD&A.96 investment decision. We agree with the information about business segments and We propose retaining sources and commenter who stated that these geographic areas. See paragraph (b)(3)(i) of Item 12 availability of raw materials as a listed under Part I, Section B of Form S–4. The elements are key to how reasonable disclosure topic in Item 101(c) 97 investors often evaluate the future Commission recently eliminated Items 101(b) and (d) as business disclosure requirements because because, while not applicable to all prospects of a registrant’s business and much of the disclosure was duplicative of registrants, raw materials are that highlighting these topics should disclosure in the registrant’s financial statements. fundamental to businesses that depend 84 See DUSTR Adopting Release, supra note 62, at elicit more informative disclosures. As on them. Although some registrants such, we propose to retain as a listed 50168–50169. Because proposed Item 101(c)(1)(i) would continue to pertain to a registrant’s products include disclosure regarding raw disclosure topic information regarding or services, we are proposing to retain this Item 101 materials elsewhere in disclosure revenue-generating activities, products provision in Form S–4, but remove Items 101(b) and documents (such as in MD&A), this and/or services, and any dependence on (d) from that Form to reflect their elimination from Regulation S–K. The same paragraph of Form S–4 disclosure often has a different focus.98 key products, services, product families also includes descriptions of disclosure items or customers, including governmental included under Items 101(b), (c)(1)(i), or (d). We are 89 17 CFR 229.101(c)(1)(iii) and (iv). customers, to the extent this information proposing to remove the descriptor that pertains to 90 17 CFR 229.101(c)(1)(iii). Item 101(d) (‘‘foreign and domestic operations and is material to an understanding of the 91 See Concept Release, supra note 6. export sales’’), but retain the descriptor ‘‘industry 85 92 registrant’s business. segments’’ since that descriptor would continue to See letters from Chamber, FedEx, CGCIV, apply to Item 101(c)(1)(i). We are proposing to Davis, Fenwick, and NYSSCPA. 82 See proposed Item 101(c)(1). substitute the descriptor ‘‘key products or services’’ 93 See letters from Fenwick and NYSSCPA. 83 See proposed Item 101(c)(2). for ‘‘classes of similar products or services’’ because 94 See letter from Fenwick. 84 See letter from E&Y. the proposed amendment to Item 101(c)(1)(i) would 95 See letter from NYSSCPA. 85 See proposed Item 101(c)(1)(i). Form S–4 refers include the former but would eliminate the latter 96 See letter from Davis. to the current version of Item 101(c)(1)(i), which as a listed disclosure topic under Item 101(c)(1)(i). 97 See proposed Item 101(c)(1)(iii)(A). pertained to a registrant’s principal products or 86 See letter from CFA Institute. 98 For example, a discussion of raw materials in services, but also refers to Items 101(b) and (d), 87 See letter from S. Percoco. a registrant’s MD&A may focus more narrowly on which pertain, respectively, to certain financial 88 See proposed Item 101(c)(1)(ii). Continued

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Further, our proposal to shift Item Further, several commenters suggested property 114 and intellectual property 101(c) to a more principles-based that because trade secret protection is has become increasingly important to approach would help clarify that contingent on the owner taking business performance.115 Certain disclosure regarding sources and reasonable measures to keep the industries produce or use significant availability of raw materials by information secret, any revision to this amounts of intellectual property or rely registrants is required only when Item to require disclosure of more heavily on these rights.116 material to their business. ‘‘intellectual property’’ would, by Accordingly, some registrants provide definition, include trade secrets and detailed disclosure in response to Item b. The Duration and Effect of all Patents, endanger these assets.105 In addition, 101(c)(1)(iv), although disclosure varies Trademarks, Licenses, Franchises, and some commenters opposed establishing among registrants and across industries. Concessions Held different intellectual property In the biotechnology and Item 101(c)(1)(iv) requires disclosure requirements by industry 106 and some pharmaceutical industries, registrants of the importance, duration, and effect commenters supported maintaining the that provide detailed patent disclosure of all patents, trademarks, licenses, current materiality threshold for often disclose the jurisdiction in which franchises, and concessions held to the disclosure.107 the patent was filed, year of expiration, extent material to an understanding of Conversely, a number of commenters type of patent (e.g., composition of the registrant’s business taken as a recommended generally expanding the matter, method of use, method of whole.99 The Concept Release solicited scope of Item 101(c)(1)(iv).108 In this delivery or method of manufacturing), input on whether to maintain, expand regard, some commenters stated that a products or technologies to which the or revise the current scope of this Item more complete record of a public patent relates and how the patent was and requested comment on the company’s intellectual property is acquired (e.g., licensed from another competitive costs of this disclosure.100 It useful to the public, shareholders, entity or owned and filed by the also sought comment on whether to researchers, and the financial markets registrant). Some registrants in these limit this disclosure requirement to generally.109 One of these commenters industries aggregate patent disclosure by certain industries.101 recommended expanding the groups of patents, potentially making Numerous commenters supported requirement to include detailed disclosure about individual material maintaining the current scope of Item intellectual property information for patents difficult to discern. As 101(c)(1)(iv),102 while several both material and immaterial registrants in the biotechnology and commenters opposed expanding this intellectual property with the caveat pharmaceutical industries regularly sell Item based on competitive concerns.103 that immaterial intellectual property one or more patented products that Item 101(c)(1)(iv) currently does not should be required only if the generate substantial revenue, disclosure refer to disclosure of copyrights or trade information is readily available to report of ‘‘patent cliffs,’’ 117 which may result secrets and many commenters expressed and within the knowledge of the concern that requiring such disclosure company.110 Another commenter, in 114 See Economics and Statistics Administration would impose substantial costs and be recommending expansion of this and United States Patent and Trademark Office, unduly burdensome by requiring Intellectual Property and the U.S. Economy: requirement, noted that intellectual Industries in Focus (Mar. 2012) at iv, available at registrants to systematically identify and property assets are a major driver of http://www.uspto.gov/sites/default/files/news/ catalog such intellectual property.104 value in corporations, and asserted that publications/IP_Report_March_2012.pdf more open disclosure would allow (‘‘Intellectual Property Report’’). the effect that spending on, or budgeting for, raw shareholders to better assess the value of 115 See, e.g., Kelvin W. Willoughby, What impact materials may have on a registrant’s liquidity and does intellectual property have on the business capital resources, whereas Item 101(c)(1) attempts corporate intellectual property assets performance of technology firms?, Int. J. Intellectual to elicit broader disclosure concerning activities and monitor directors’ stewardship of Property Management, Vol. 6, No. 4 (2013). involving raw materials, including identifying and these assets.111 116 See Intellectual Property Report, supra note procuring sources for those raw materials, that may Another commenter recommended 114. This report identifies seventy-five industries as be material to an understanding of the registrant’s including copyrights under this item ‘‘IP-intensive.’’ In this report, patents, trademarks business as a whole. and copyrights were the categories of intellectual 99 17 CFR 229.101(c)(1)(iv). and requiring detailed tabular property assessed. The methodology for designating 112 100 See Concept Release, supra note 6. disclosure by asset type. This each of these subcategories as ‘‘IP-intensive’’ is 101 See id. commenter also opposed establishing outlined further in this report. For patent intensive 102 See letters from 36 Organizations with an different disclosure requirements by industries, the report utilized the North American Interest in Trade Secret Protection (Aug. 8, 2016) industry.113 Industry Classification System (NAICS) codes and (‘‘36 Organizations’’), Association of American identified, as the four most patent-intensive Publishers (July 21, 2016), American Intellectual A broad range of industries directly industries, those industries classified in computer Property Law Association (Aug. 9, 2016) and indirectly benefit from intellectual and electronic product manufacturing (NAICS 334). (‘‘American IP Law Association’’), Chamber, FedEx, This three-digit NAICS industry includes computer Intellectual Property Owners Association (July 15, 105 See letters from 36 Organizations, American IP and peripheral equipment; communications 2016) (‘‘IP Owners Association’’), S. Percoco, NAM, Law Association, Chamber, FedEx, Financial equipment; other computer and electronic products; NYSSCPA, the Software Association, the Services Roundtable, IP Owners Association, and semiconductor and other electronic components; Entertainment Software Association and the NAM. and navigational, measuring, electro-medical, and Software Information Industry Association (July 21, 106 See letters from IP Owners Association, control instruments. 117 2016) (‘‘Software Associations’’), Financial Services NYSSCPA, Software Associations, and American IP The term ‘‘patent cliff’’ as used in the Roundtable (July 21, 2016), General Motors, and Law Association. biotechnology and pharmaceutical industry refers Financial Executives International. 107 See letters from American IP Law Association, to a future loss of patent protection and 103 See letters from 36 Organizations (focusing IP Owners Association, NAM, ACC and NYSSCPA. consequential loss of revenue. These potential only on trade secrets), American IP Law future losses are known to registrants far in advance 108 See letters from Black Stone IP, LLC (May 19, Association; Chamber, FedEx, Financial Services of their onset. When they occur, they often 2016), IIRC, Colleen V. Chien et al. (July 22, 2016) Roundtable (focusing only on trade secrets), IP precipitate material adverse financial effects. See, (‘‘IP Professors’’), Prof. Denoncourt (July 31, 2016), Owners Association, NAM, Association of e.g., Andrew Jack, Pharma tries to avoid falling off and CFA Institute. American Publishers (focusing only on copyrights), ‘patent cliff,’ Financial Times, May 6, 2012 and 109 See letters from IP Professors and Prof. General Motors, Financial Executives International, Cliffhanger, Economist, Dec. 3, 2011. See also Ed Denoncourt. and Software Associations. Silverman, Big Pharma Faces Some Big Patent 110 104 See, e.g., letters from 36 Organizations, See letter from IP Professors. Losses, but Pipelines are Improving, Wall St. J.: L. American IP Law Association, Chamber, FedEx, IP 111 See letter from Prof. Denoncourt. Blog, available at http://blogs.wsj.com/pharmalot/ Owners Association, NAM, and Association of 112 See letter from CFA Institute. 2015/02/09/big-pharma-faces-some-big-patent- American Publishers. 113 See id. losses-but-pipelines-are-improving/.

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in material adverse financial effects, not proposing to expand this topic to Congress makes further appropriations. may be required in the risk factors include copyrights and trade secrets. In These registrants disclose that they may section or MD&A.118 addition to competitive concerns, be required to maintain security In the information technologies and commenters noted that because clearances for facilities and personnel in services industry, registrants protect copyright and trade secret protection is order to protect classified information. their intellectual property through the not contingent on registration, a Additionally, these registrants state that use of patents, trademarks, copyrights, requirement to disclose even a subset of they may be subject to routine trade secrets, licenses, and these two types of intellectual property government audits and investigations, confidentiality agreements.119 would force registrants to systematically and any deficiencies or illegal activities Registrants with large portfolios of identify and catalog these types of identified during the audits or intellectual property often disclose that intellectual property, which could investigations may result in the their products, services, and impose substantial costs and require forfeiture or suspension of payments technologies are not dependent on any significant time.123 and civil or criminal penalties. We are specific patent, trademark, copyright, proposing to retain renegotiation or 4. A Description of Any Material Portion trade secret, or license. As a result, these termination of government contracts as of the Business That May Be Subject to registrants often provide only high-level a listed disclosure topic 127 because we Renegotiation of Profits or Termination discussions of their intellectual property continue to believe that, when material of Contracts or Subcontracts at the portfolios, which include general to a business, disclosure of this Election of the Government statements of a registrant’s information is important for investors. development, use, and protection of its Item 101(c)(1)(ix) requires, to the intellectual property. Registrants with extent material to an understanding of 5. The Extent to Which the Business Is smaller intellectual property portfolios the registrant’s business taken as a or May Be Seasonal tend to provide slightly more detailed whole, disclosure of any material Item 101(c)(1)(v) requires disclosure discussions, including, for example, portion of a business that may be subject of the extent to which the business of disclosure of the total number of issued to renegotiation of profits or termination the segment is or may be seasonal to the patents, a range of years during which of contracts or subcontracts at the extent material to an understanding of those patents expire and the total election of the Government.124 the registrant’s business taken as a number of pending patent applications. Business contracts with agencies of whole.128 The Commission recently In general, registrants in the the U.S. government and the various considered whether to delete Item information technologies and services laws and regulations relating to 101(c)(1)(v).129 While the Commission industry use copyrights to protect procurement and performance of U.S. initially proposed deleting this Item,130 against the unauthorized copying of government contracts impose terms and noting that both Regulation S–K 131 and software programs 120 and trade secrets rights that are different from those U.S. GAAP 132 require disclosures about to protect proprietary and confidential typically found in commercial contracts. seasonality in interim periods,133 the information that derives its value from In a 1972 Notice to Registrants, the Commission ultimately decided to continued secrecy.121 Since Item Commission noted that government delete Instruction 5 to Item 303(b) of 101(c)(1)(iv) does not require disclosure contracts are subject to renegotiation of Regulation S–K, which also required a about copyrights or trade secrets, profit and to termination for the discussion of any seasonal aspects that registrants currently make disclosure convenience of the government.125 At have had a material effect on a about such matters voluntarily. any given time in the performance of a registrant’s financial condition or results We propose to retain as a listed government contract, an estimate of its of operations,134 and retain Item disclosure topic the importance, profitability is often subject not only to 101(c)(1)(v). The Commission based its duration and effect of patents, additional costs to be incurred, but also decision to retain this Item on a concern trademarks, licenses, franchises, and to the outcome of future negotiations or about the potential loss of information concessions held as non-exclusive types possible claims relating to costs already in the fourth quarter about the extent to of property that may be material to a incurred.126 which the business of a registrant or its registrant’s business.122 In response to Registrants with U.S. government segment(s) is or may be seasonal concerns expressed by commenters on contracts tend to disclose that the the Concept Release, however, we are funding of these contracts is subject to 127 See proposed Item 101(c)(1)(iv). the availability of Congressional 128 17 CFR 229.101(c)(1)(v). 118 See generally ‘‘Interpretation: Commission appropriations and that, as a result, 129 See Disclosure Update and Simplification Guidance Regarding Management’s Discussion and long-term government contracts are Proposed Rule, Release No. 33–10110 (July 13, Analysis of Financial Condition and Results of partially funded initially with 2016) [81 FR 51607 (Aug. 4, 2016)] (‘‘DUSTR Operations,’’ Release No. 33–8350 (Dec. 19, 2003) Proposing Release’’). Public comments on the [68 FR 75056 (Dec. 29, 2003)], available at https:// additional funds committed only as DUSTR Proposing Release are available at https:// www.sec.gov/rules/interp/33-8350.htm. www.sec.gov/comments/s7-15-16/s71516.htm. We 119 See Bruce Abramson, Promoting Innovation in 123 See, e.g., letters from 36 Organizations, refer to these letters throughout as ‘‘DUSTR’’ letters. the Software Industry: A First Principles Approach American Intellectual Property Law Association 130 See DUSTR Proposing Release, supra note to Intellectual Property Reform, 8 B.U. J. Sci. & (Aug. 9, 2016), U.S. Chamber of Commerce (July 20, 129. Tech. L. 75 (2002) (discussing the software 2016), FedEx Corporation (July 21, 2016), 131 Instruction 5 to Item 303(b) of Regulation S– industry’s use of intellectual property law). Intellectual Property Owners Association (July 15, K [17 CFR 229.303(b)] required a discussion of any 120 See Dennis S. Karjala, Copyright Protection of 2016), National Association of Manufacturers (July seasonal aspects of a registrant’s business where the Operating Software, Copyright Misuse, and 21, 2016), Association of American Publishers (July effect is material. Antitrust, 9 Cornell J.L. & Pub. Pol’y 161, 172 (1999) 21, 2016). But see also letters from International 132 ASC 270–10–45–11. (discussing the dependence of software technology Integrated Reporting Council (July 20, 2016) and 133 See DUSTR Proposing Release, supra note companies on copyright). CFA Institute (Oct. 6, 2016) (supporting the 129. 121 See Raymond T. Nimmer & Patricia Ann inclusion of copyrights under Item 101(c)). 134 The Commission decided to delete Instruction Krauthaus, Software Copyright: Sliding Scales and 124 17 CFR 229.101(c)(1)(ix). 5 to Item 303(b) because of its belief that U.S. GAAP Abstracted Expression, 32 Hous. L. Rev. 317, 325 125 See Defense and Other Long Term Contracts; in combination with the remainder of Item 303 (1995) (distinguishing among the software Prompt and Accurate Disclosure of Information, requires disclosures in interim reports that convey industry’s use of trade secret law, patent law and Release No. 33–5263 (June 22, 1972) [37 FR 21464 reasonably similar information to the disclosures copyright law). (Oct. 11, 1972)]. required by Instruction 5 to Item 303(b). See DUSTR 122 See proposed Item 101(c)(1)(iii)(B). 126 See id. Adopting Release, supra note 62, at 50169.

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because U.S. GAAP may not elicit this Pursuant to the National registrant’s business.152 A few disclosure.135 Environmental Policy Act of 1969 commenters supported a specific In light of the Commission’s recent (‘‘NEPA’’),146 which mandated requirement to disclose government evaluation of this disclosure item, we consideration of the environment in regulations 153 while one commenter propose including as a disclosure topic regulatory action, in 1973, the opposed such a requirement, stating that in Item 101(c) the extent to which the Commission adopted a new provision to it would not provide significant business is or may be seasonal.136 require disclosure of the material effects additional information.154 Some 6. Compliance With Material that compliance with Federal, state and commenters supported requiring 155 Government Regulations, Including local environmental laws may have on disclosure of foreign regulatory risks. Environmental Regulations the capital expenditures, earnings, and Two commenters specified that this competitive position of the registrant, requirement should be limited to foreign Item 101(c)(1)(xii) requires disclosure now designated as Item 101(c)(1)(xii).147 regulations material to the registrant’s of the material effects of compliance Subsequent litigation 148 concerning business.156 One commenter opposed a with environmental laws on the capital both the denial of a rulemaking petition requirement to discuss foreign expenditures, earnings and competitive and adoption of the 1973 environmental regulations that affect a registrant’s position of the registrant and its disclosure requirements resulted in the business and, instead, recommended subsidiaries, as well as any material revising Item 103 to require disclosure estimated capital expenditures for the Commission initiating public proceedings primarily to elicit of any foreign tax audits or actions with remainder of the fiscal year, the negative findings, stating this would be succeeding fiscal year, and such future comments on whether the provisions of NEPA required further rulemaking.149 less costly and time consuming than a periods that the registrant deems requirement to disclose foreign material.137 As a result of these proceedings, the regulations.157 The Concept Release solicited input Commission in 1976 amended the Item Although not required by Item 101(c), on whether to increase or reduce the 101 requirements to specifically require many registrants currently discuss disclosure required by this Item and disclosure of any material estimated whether this disclosure is important to capital expenditures for environmental government regulations relevant to their investors.138 It also sought comment on control facilities for the remainder of the business, often in the form of a list. whether to require this disclosure in a registrant’s current and succeeding Healthcare and insurance providers different format.139 Some commenters fiscal years, and for any further periods regularly disclose their collection, use supported retaining Item that are deemed material.150 and protection of individually- identifiable information and compliance 101(c)(1)(xii).140 A few of these While there is no separate line item commenters stated that this disclosure with the Health Insurance Portability requiring disclosure of government and Accountability Act of 1996,158 as would increase in importance given regulations that may be material to a trends toward an enhanced regulatory well as the impact of the Patient registrant’s business, it is common 159 approach to environmental Protection and Affordable Care Act practice for many registrants to include on their business. Biotechnology or protection.141 Several commenters disclosure regarding such information supported retaining the Item but medical device companies often in response to Item 101(c)(1)(xii). The disclose the status of and process for opposed expanding it to include Concept Release sought comment on additional requirements.142 Other FDA approval of significant new drugs whether to require registrants to or medical devices. Public utilities commenters supported expanding this disclose government regulations Item.143 A few of these commenters typically discuss regulation by various material to their business given that Federal, state, and local authorities and supported requiring more detailed many registrants already voluntarily disclosure of environmental fines, 151 include information about state provide such information. In ratemaking procedures, which violations, and litigation (e.g., whether addition, it sought input on whether to these are rare or recurring).144 One determine the rates utilities charge and require disclosure of foreign regulations the return on invested capital. commenter recommended including applicable to the operation of the this requirement in a broader category of Registrants in the financial services government regulations.145 industry regularly describe Federal and 146 Public Law 91–190, 42 U.S.C. 4321–4347 (Jan. state regulation as well as supervision 1, 1970) (‘‘NEPA’’). 135 See id. ASC 270–10–45–11 states that entities 147 See Disclosure with Respect to Compliance by the Federal Reserve Board, while should consider supplementing interim reports with Environmental Requirements and Other registrants with a material amount of with information for 12-month periods ended at the Matters, Release 33–5386 (Apr. 20, 1973) [38 FR U.S. government contracts disclose the interim date to avoid the possibility that interim 12100 (May 9, 1973)] (‘‘Environmental Disclosure laws and regulations for government results with material seasonal variations may be Adopting Release’’). taken as fairly indicative of the estimated results for 148 contracts. Registrants with tax strategies a full fiscal year. See Natural Resources Defense Council, Inc. v. SEC, 389 F. Supp. 689 (D.D.C. 1974); and Natural involving foreign jurisdictions typically 136 See proposed Item 101(c)(1)(v). Resources Defense Council, Inc. v. SEC, 606 F.2d disclose that they are subject to income 137 17 CFR 229.101(c)(1)(xii). 1031 (DC Cir. 1979), rev’g 432 F. Supp. 1190 (D.D.C. taxes in both the U.S. and numerous 138 See Concept Release, supra note 6. 1977). See also U.S. Sec. & Exch. Comm’n,, Staff foreign jurisdictions, and that future 139 See id. Report on Corporate Accountability 1, 251–259 140 See letters from PRI, the Carbon Tracker (Comm. Print 1979) (‘‘Staff Report’’) (providing a changes to U.S. and non-U.S. tax law Initiative (July 20, 2016), S. Percoco, Chamber, description of this litigation). could adversely affect their anticipated FedEx, CGCIV, NIRI, and CFA Institute. 149 See Disclosure of Environmental and Other financial position and results. Some 141 See, e.g., letters from PRI and the Carbon Socially Significant Matters, Release No. 33–5569 Tracker Initiative. (Feb. 11, 1975) [40 FR 7013 (Feb. 18, 1975)]. 152 See id. 142 See letters from Chamber, FedEx, CGCIV, and 150 See Conclusions and Final Action on 153 See letters from Fenwick and S. Percoco. NIRI. Rulemaking Proposals Relating to Environmental 154 See letter from NYSSCPA. 143 See letters from CalPERS, DHC Consulting, Disclosure, Release No. 33–5704 (May 6, 1976) [41 155 Impax Asset Management Limited (July 19, 2016) FR 21632 (May 27, 1976)]. For further discussion See letters from IAC, NYSSCPA, and SIFMA. (‘‘Impax’’), Good Jobs First, Domini Social, and GRI. of how the Commission has sought to consider 156 See letters from NYSSCPA and SIFMA. 144 See letters from Impax, Domini Social and environmental effects in its business disclosure 157 See letter from E. Bean. Good Jobs First. requirements, see infra Section II.C.2. 158 Public Law 104–191, 110 Stat. 1936 (1996). 145 See letter from Fenwick. 151 See Concept Release, supra note 6. 159 Public Law 111–148, 124 Stat. 119 (2010).

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registrants disclose the impact of tax believe that a more principles-based with some asserting that disclosure of treaties between the U.S. and one or approach would permit a registrant to the exact number of employees would more foreign jurisdictions on their tailor its disclosure by focusing on the help investors understand the risks of business. effects of environmental compliance potential material labor and human Consistent with the current practice of that are material to its particular rights violations and that, for many registrants, as observed by the business. This proposed approach contractors or subcontractors, disclosing staff in its review of filings, we propose would also benefit investors by helping a range of these workers would be including the material effects of to reduce or eliminate boilerplate or acceptable if sufficiently narrow and compliance with material government other disclosure concerning the effects accompanied by disclosure explaining of environmental compliance that may regulations, not just environmental why the exact number is unavailable.167 laws, as a listed disclosure topic in Item not be material to an understanding of Conversely, a number of commenters 101(c).160 This disclosure topic would the business of a particular registrant. questioned the utility of requiring focus on the material effects that 7. Human Capital Disclosure registrants to disclose the number of compliance with material governmental 168 regulations, both foreign and domestic, Item 101(c)(1)(xiii) currently requires persons employed by the registrant. may have upon the capital disclosure of the number of persons Several of these commenters opposed 169 expenditures, earnings and competitive employed by the registrant.163 The expanding the requirement, while position of the registrant and its Concept Release solicited input on this another commenter stated that this subsidiaries. We believe that this more disclosure requirement; 164 in particular, disclosure is typically immaterial and we requested feedback on: any change in the number of employees principles-based approach would help • provide investors with the information Whether this disclosure is that materially affects the registrant’s important to investors; results of operations would be disclosed material to an investment decision • about a registrant’s compliance with the Whether to require or permit in MD&A.170 government regulations that materially registrants to provide a range of its number of employees or independent With respect to whether anticipated affect the registrant’s business so that material changes in the number of investors may achieve a more complete contractors; • Whether disclosure regarding employees would be useful to investors, understanding of the registrant’s anticipated material changes in the several commenters supported business. This approach would also number of employees would be useful disclosure of employee turnover.171 enable each registrant to tailor its to investors; and Numerous commenters further disclosure regarding its compliance • Whether to require registrants to recommended requiring registrants to with those governmental regulations provide disclosure distinguishing distinguish among their total that are of particular importance to the among their total employees such as by employees.172 Most of these registrant. Finally, the proposed full-time and part-time or seasonal commenters recommended requiring approach would codify what has employees; employees and independent become common practice regarding this disclosure for both registrants and contractors; or domestic or foreign their suppliers, and specified inclusion government regulation disclosure. employees.165 While we propose to retain the Many commenters recommended State Coalition for Responsible Investment (July 21, requirement that a registrant disclose retaining and expanding the material estimated capital expenditures 2016) (‘‘TSCRI’’), Addenda Capital (July 21, 2016), requirement to disclose the number of AFSCME, AFL–CIO, Bloomberg (July 21, 2016), for environmental control facilities for persons employed by the registrant,166 Oxfam America (July 21, 2016), Presbyterian the current fiscal year and any other Church U.S.A. (July 21, 2016) (‘‘PC USA’’), Allstate, Cornerstone, Christian Brothers Investment Services subsequent period that the registrant that supported the retention of Item 101(c)’s (July 21, 2016) (‘‘CBIS’’), S. Percoco, Responsible deems material,161 we are not proposing environmental compliance disclosure provision Sourcing Network (July 21, 2016) and CalPERS. while opposing its expansion. See supra note 142. to require the disclosure of additional 167 See letters from US SIF and US SIF 163 17 CFR 229.101(c)(1)(xiii). specific expenditures related to Foundation (July 14, 2016) (‘‘US SIF’’), ICCR, Dana 164 environmental compliance, as some In addition, there has been congressional Investment, Sisters of Charity, CCF, Park, OIP, interest in the topic of modernizing human capital commenters have suggested.162 We Sacred Heart, S.S. St. Francis, Friends, Everence, disclosures by registrants. See, e.g., letter from Sen. SSND, SSSF-Wisconsin, As You Sow, TSCRI, PC Mark R. Warner (July 19, 2018) (‘‘Sen. Warner’’). USA and CBIS. 160 See proposed Item 101(c)(2)(i). We note that, 165 See Concept Release, supra note 6. 168 See letters from Chamber, FedEx, CGCIV, and despite the repetition of materiality within this 166 See letters from RGA, E. Bean (July 6, 2016), Fenwick. topic in relation to both effects of compliance and CII, Railpen, NYSC, Interfaith Center on Corporate 169 government regulations, we do not foresee any See letters from Chamber, FedEx, and CGCIV. Responsibility (July 14, 2016) (‘‘ICCR’’), US SIF 170 circumstances whereby a registrant could determine Foundation (July 14, 2016) (‘‘US SIF’’), Dana See letter from Fenwick. Another commenter there are material effects from compliance with a Investment Advisors (July 15, 2016) (‘‘Dana stated that this information is immaterial, does not government regulation, but that the government Investment’’), Douglas Hileman Consulting LLC provide information about the size or scope of the regulation itself is not material to the registrant’s (July 15, 2016) (‘‘DHC Consulting’’), Sisters of business, and does not provide any clarity to the business taken as a whole. Charity of Saint Elizabeth (July 18, 2016) (‘‘Sisters overall strategy of the company. See letter from 161 Current Item 101(c)(i)(xii) requires the of Charity’’), Christian Church Foundation (July 18, United Health. Further, one commenter asserted disclosure of material estimated capital 2016) (‘‘CCF’’), Park Foundation (July 19, 2016) that disclosures that comply with the current expenditures for environmental control facilities for (‘‘Park’’), OIP Trust (July 19, 2016) (‘‘OIP’’), Priests prescriptive requirement may not provide investors the remainder of a registrant’s current fiscal year of the Sacred Heart (July 20, 2016) (‘‘Sacred Heart’’), with the most appropriate information. and its succeeding fiscal year as well as for such Sister Schools of St. Francis (July 20, 2016) (‘‘S.S. 171 See letters from DHC Consulting, LGIM, further periods as the registrant may deem material. St. Francis’’), Friends Fiduciary Corporation (July Railpen, CalPERS, AFL–CIO, NYC Comptroller, In order to simplify the disclosure, and in keeping 20, 2016) (‘‘Friends’’), LGIM, Everence Financial AFSCME, CAQ, Domini Social, E&Y, Hermes with our more principles-based approach, we are and the Praxis Mutual Funds (July 20, 2016) Investment Management, and Cornerstone. proposing to revise Item 101(c) to require such (‘‘Everence’’), Sister Schools of Notre Dame (July 21, 172 See letters from ICCR, Dana Investment, DHC environmental control facilities expenditures 2016) (‘‘SSND’’), Provincial of the School Sisters of Consulting, Sisters of Charity, CCF, Park, OIP, disclosure for the registrant’s current fiscal year and St. Francis of St. Joseph Convent (July 20, 2016) Sacred Heart, S.S. St. Francis, Friends, Everence, any other subsequent period deemed material by (‘‘SSSF-Wisconsin’’), As You Sow (July 21, 2016), SSND, SSSF-Wisconsin, As You Sow, TSCRI, PC the registrant. See proposed Item 101(c)(2)(i). CAQ, GRI (July 21, 2016), Domini Social, E&Y, USA, CBIS, GRI, US SIF, Railpen, CalPERS, AFL– 162 See, e.g., letters from DHC Consulting, Domini CalSTRS, Hermes Investment Management (July 21, CIO, CAQ, Domini Social, CalSTRS, Good Jobs Social, and Impax. Our proposed approach is 2016), NYC Comptroller, Good Jobs First (July 21, First, Maryland Bar Securities Committee, consistent with the views of several commenters 2016), Maryland Bar Securities Committee, Tri- Bloomberg, and NYC Comptroller.

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of migrant, contract, or temporary rules, to require registrants to disclose may represent an important resource workers.173 information about their human capital and driver of performance for certain The Concept Release also solicited management policies, practices and companies, and as part of our efforts to feedback on additional line-item performance (the ‘‘Human Capital modernize disclosure, we propose to disclosure requirements about a Rulemaking Petition’’).183 Many of the amend Item 101(c) to refocus registrants’ registrant’s business that would improve comment letters received in support of human capital resources disclosures.188 the quality and consistency of the Human Capital Rulemaking Petition Specifically, we propose replacing the disclosure, and specifically sought input asserted the importance of human current requirement to disclose the on whether to require additional capital management in assessing the number of employees with a information about a registrant’s potential value and performance of a requirement to disclose a description of employees or employment practices.174 184 company over the long term. Further, the registrant’s human capital resources, A number of commenters advocated for a number of commenters asserted that including in such description any greater human capital disclosure,175 companies with poor management of human capital measures or objectives with a variety of commenters human capital may face operational, that management focuses on in recommending various specific legal, and reputational risks while, in disclosure topics, including: contrast, companies with strong human managing the business, to the extent • Worker recruitment, employment capital management may develop a such disclosures would be material to practices, and hiring practices;176 competitive advantage.185 While the an understanding of the registrant’s • Employee benefits and grievance Human Capital Rulemaking Petition did business. We recognize that the exact mechanisms; 177 not include specific recommendations measures or objectives included in a • ’’Employee engagement’’ or for disclosure requirements related to registrant’s human capital resource investment in employee training; 178 human capital management, it included disclosure may change over time and • Workplace health and safety; 179 may depend on the industry. The • categories of information that it Strategies and goals related to characterized as fundamental to proposed amendment provides non- human capital management and legal or furthering investors’ understanding of exclusive examples of human capital regulatory proceedings related to how well a company is managing its measures and objectives that may be 180 employee management; 186 • human capital. material, depending on the nature of the Whether employees are covered by Item 101(c)(1)(xiii) dates back to a registrant’s business and workforce, collective bargaining agreements; 181 time when companies relied such as measures or objectives that and significantly on plant, property, and • Employee compensation or address the attraction, development, 182 equipment to drive value. At that time, and retention of personnel. incentive structures. a prescriptive requirement to disclose We also received a rulemaking In assessing the best way to approach the number of employees may have petition requesting that the Commission been an effective means to elicit disclosure regarding human capital, we adopt new rules, or amend existing information material to an investment were mindful that each industry, and even each company within a specific 173 decision. Today, intangible assets See letters from ICCR, Dana Investment, DHC represent an essential resource for many industry, has its own human capital Consulting, Sisters of Charity, CCF, Park, OIP, considerations, and that those Sacred Heart, S.S. St. Francis, Friends, Everence, companies.187 Because human capital SSND, SSSF-Wisconsin, As You Sow, TSCRI, PC considerations may evolve over time. In USA, CBIS, GRI, and Good Jobs First. 183 See Rulemaking petition to require registrants light of this fact, and with the principle 174 See Concept Release, supra note 6. to disclose information about their human capital of materiality in mind, it is our view 175 See, e.g., letters from M. Ferguson (July 7, management policies, practices and performance, that prescribing fixed, specific line item 2016), Norges Bank Investment Management (July File No. 4–711 (July 6, 2017), available at https:// 15, 2016), P. Linzmeyer (July 19, 2016), LGIM, www.sec.gov/rules/petitions/2017/petn4-711.pdf disclosures in this area for all registrants Railpen, Hermes Investment Management, NYC and related comments available at https:// would not result in the most meaningful Comptroller, Addenda Capital, AFSCME, Working www.sec.gov/comments/4-711/4-711.htm. We refer disclosure.189 Instead, we believe that IDEAL (July 21, 2016), AFL–CIO, National to these letters throughout as ‘‘Human Capital investors would be better served by Partnership for Women & Families (Aug. 8, 2016), Rulemaking Petition’’ letters. and Rockefeller & Co., Inc. (July 21, 2016), and Sen. 184 See, e.g., letters from British Columbia understanding how each company looks Warner. Municipal Pension Board of Trustees (Sept. 29, at its human capital and, in particular, 176 See letters from ICCR, Dana Investment, 2017) [Human Capital Rulemaking Petition letter], where management focuses its attention CalPERS and CalSTRS (July 10, 2017) (‘‘CalPERS Sisters of Charity, CCF, Park, OIP, Sacred Heart, in this space. The intent of the proposed S.S. St. Francis, Friends, Everence, SSND, SSSF- and CalSTRS 1’’) [Human Capital Rulemaking Wisconsin, As You Sow, TSCRI, CalPERS, PC USA, Petition letter], Center for Safety and Health requirement is to elicit, to the extent CBIS, and Domini Social. Sustainability (June 15, 2018) (‘‘Center for Safety’’) material to an understanding of the [Human Capital Rulemaking Petition letter], David 177 See letters from ICCR, Dana Investment, F. Larcker (Dec. 15, 2017) [Human Capital registrant’s business, disclosures Sisters of Charity, CCF, Park, OIP, Sacred Heart, Rulemaking Petition letter], League of Allies (Apr. regarding human capital that allow S.S. St. Francis, Friends, Everence, SSND, SSSF- 25, 2018) [Human Capital Rulemaking Petition Wisconsin, As You Sow, TSCRI, PC USA, and CBIS. investors to better understand and letter], and AFL–CIO (Sept. 22, 2017) [Human 178 evaluate this company resource and to See letters from LGIM, Railpen, CalPERS, Capital Rulemaking Petition letter]. AFL–CIO, NYC Comptroller, AFSCME, Addenda 185 See letters from Australian Council of Capital and Hermes Investment Management. See Superannuation Investors (Nov. 20, 2017) [Human 188 See proposed Item 101(c)(2)(ii). also letter from Joseph V. Carcello, Chair, Investor Capital Rulemaking Petition letter], British 189 The Investor Advisory Committee recently as Owner Subcommittee, on behalf of Columbia Municipal Pension Board of Trustees, recommended that the SEC take measures to Subcommittee members, of the SEC’s Investor CalPERS and CalSTRS 1, and Center for Safety. improve the disclosure of a registrant’s human Advisory Committee (November 22, 2016) (in 186 See Human Capital Rulemaking Petition, capital management, and suggested that ‘‘any response to FAST Act—SEC Required Study on supra note 183 (suggesting that the key categories requirements should be crafted so as to reflect the Modernization and Simplification of Regulation S– of information are: Workforce demographics; varied circumstances of different businesses, and to K). workforce stability; workforce composition; eschew simple ‘one-size-fits-all’ approaches that 179 See letters from LGIM, Railpen, CalPERS, NYC workforce skills and capabilities; workforce culture obscure more than they add.’’ Recommendation of Comptroller, AFSCME, AFL–CIO, and US SIF. and empowerment; workforce health and safety; the Investor Advisory Committee Human Capital 180 See letters from AFL–CIO and Domini Social. workforce productivity; human rights commitments Management Disclosure (March 28, 2019), available 181 See letter from Good Jobs First. and their implementation; workforce compensation at https://www.sec.gov/spotlight/investor-advisory- 182 See letters from NYC Comptroller, AFL–CIO, and incentives). committee-2012/human-capital-disclosure- CalPERS, and Domini Social. 187 See infra note 279. recommendation.pdf.

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see through the eyes of management which the business of a registrant or its stability of the workforce, such as how this resource is managed. segment(s) is or may be seasonal may voluntary and involuntary turnover not be elicited by U.S. GAAP. We rates; measures regarding average hours Request for Comment further note that there is no longer a of training per employee per year; 12. Should we shift to a more separate seasonality instruction to information regarding human capital principles-based approach for Item MD&A. Do these considerations support trends, such as competitive conditions 101(c), as proposed? Would registrants the continued inclusion of seasonal and internal rates of hiring and find it difficult to apply the principles- aspects of a registrant’s business, to the promotion; measures regarding worker based requirements? extent material to the understanding of productivity; and the progress that 13. Would the proposed principles- a registrant’s business, as a listed management has made with respect to based requirements elicit information disclosure topic? any objectives it has set regarding its that is material to an investment 20. Should we include as a listed human capital resources? Would decision? If not, how might Item 101(c) disclosure topic the material effects of providing specific examples potentially be further improved? Are there any compliance with material government result in disclosure that is immaterial additional disclosure topics that we regulations, as proposed, or should we and not tailored to a registrant’s specific should include in Item 101(c) to focus more narrowly on compliance business? Would not including such facilitate disclosure? Alternatively, with environmental regulations, as examples result in a failure to elicit should we exclude any of our proposed currently required under Item 101(c)? information that is material and in some disclosure topics? Would the proposed more principles- cases comparable across different 14. Should we instead require based approach to governmental issuers? disclosure of any or all of the topics regulatory compliance disclosure elicit 24. Should we retain an explicit addressed in our proposed examples? If the appropriate level of disclosure about requirement for registrants to disclose so, which topics? Should we require environmental and foreign regulatory the number of their employees? other types of business information? If risks? If not, are there more specific Alternatively, should we permit so, what information? disclosures that we should require? registrants to disclose a range of the 15. Should we retain Item 101(c)’s Should we continue to include material number of its employees and/or a range distinction between disclosure topics estimated capital expenditures for for certain types of employees? for which segment disclosure should be environmental control facilities as a 25. Foreign private issuers that file the primary focus, and those for which disclosure topic under Item 101(c)? registration statements on Forms F–1, the focus should be on the registrant’s 21. Should disclosure regarding F–3, and F–4 are not subject to Item 101 business taken as a whole, as proposed? human capital resources, including any and instead must meet the business If so, is our allocation of the listed material human capital measures or disclosure requirements of Form 20–F. disclosure topics into the two categories objectives that management focuses on Should we amend Form 20–F to require appropriate? in managing the business, be included the disclosure of human capital 16. We are proposing to amend Item under Item 101(c) as a listed disclosure resources, including any human capital 101(c) to include as a listed disclosure topic, as proposed? Should we define measures or objectives that management topic the status of development efforts human capital? If so, how? focuses on in managing the business, to for new or enhanced products, trends in 22. With respect to human capital the extent material to an understanding market demand and competitive resource disclosure, should we provide of the registrant’s business? Would such conditions. Would the disclosure non-exclusive examples of the types of disclosure present a significant elicited in response to this amendment measures or objectives that management challenge to foreign private issuers to overlap with the disclosure provided in may focus on in managing the business, the extent that it is not required in other such as, depending on the nature of the response to our proposed amendment to jurisdictions? Are there other proposed registrant’s business and workforce, Item 101(a) to include material changes Item 101 disclosure topics that we measures or objectives that address the to business strategy as a disclosure should require in Form 20–F? topic? If so, should business strategy attraction, development, and retention 26. The Commission revised Form changes be included as a listed of personnel, as proposed? Would 20–F in 1999 to conform in large part to disclosure topic in Item 101(c) instead providing specific examples potentially the international disclosure standards of Item 101(a)? result in disclosure that is immaterial endorsed by the International 17. Currently, the duration and effect and not tailored to a registrant’s specific Organization of Securities Commissions business? Would not including such of copyright and trade secret protection (‘‘IOSCO’’) for the non-financial examples result in a failure to elicit is not included within the scope of Item statement portions of a disclosure information that is material and in some 101(c) disclosure. Should we include it document, which have served as the cases comparable across different as a listed disclosure topic that could be basis for the disclosure requirements in issuers? provided? several foreign jurisdictions.190 One of 18. Is backlog typically discussed in 23. With respect to human capital the objectives of the IOSCO standards MD&A or is it better suited for resource disclosure, should we include was to facilitate the cross-border flow of disclosure under Item 101(c) to the other non-exclusive examples of securities and capital by promoting the extent material? Similarly, is working measures or objectives that may be use of a single disclosure document that capital typically sufficiently disclosed material, such as the number and types would be accepted in multiple in MD&A or is it better addressed under of employees, including the number of jurisdictions.191 If we revise Form 20–F Item 101(c)? full-time, part-time, seasonal and 19. Should the extent to which the temporary workers, to the extent to include any of the proposed Item 101 business is or may be seasonal be disclosure of such information would be amendments, would such revision included as a listed disclosure topic, as material to an understanding of the reduce the ability of foreign private proposed? Alternatively, should we registrant’s business? Could other 190 See International Disclosure Standards, require this disclosure in all examples include, depending on the Release No. 33–7745 (September 28, 1999) [64 FR circumstances? We note that fourth nature of the registrant’s business and 53900 (Oct. 5, 1999)]. quarter disclosure about the extent to workforce: Measures with respect to the 191 See id. at 53901.

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issuers to use a single document in Commission included in Form A–2 a GAAP.205 A number of commenters 206 multiple jurisdictions? requirement for a brief description of stated that the objectives of Item 103 27. The disclosure requirements material, pending legal proceedings and and U.S. GAAP differ,207 and some of regarding a foreign private issuer’s proceedings by governmental these commenters 208 indicated that a business under Form 20–F are largely authorities, where such proceedings better articulation of objectives may be prescriptive. Would amending Form 20– depart from the ordinary routine warranted. Commenters further F to make the business disclosure more litigation incidental to the kind of expressed concern that the integration principles-based represent a more business conducted by the registrant or could lead to increased disclosure of significant change, or impose a greater its subsidiaries.197 The requirement was immaterial items and may eliminate the challenge, for foreign private issuer safe-harbor protections currently later expanded in Form S–1 198 to registrants than the proposed Item 101 afforded to forward-looking statements include: (1) A requirement to identify amendments would for domestic related to legal proceedings under registrants? Would the benefits of the court or agency, the date instituted, Regulation S–K.209 making Form 20–F more principles- and the names of the principal parties; Some commenters recommended the based nevertheless justify such an (2) a requirement that material deletion of Item 103 altogether or, at a amendment? bankruptcy proceedings involving the minimum, some of the disclosure 28. Much of the disclosure required registrant or its significant subsidiaries requirements contained therein.210 For under Item 101(h) for smaller reporting be described and any material example, one of these commenters companies is prescriptive. Should we proceeding involving a director, officer, asserted that U.S. GAAP, together with retain this prescriptive approach or affiliate, or principal security holder; Items 303 and the former 503(c) (now adopt a more principles-based and (3) an exemption for disclosure of Item 105) of Regulation S–K, elicits the approach, similar to the proposed proceedings involving claims of less appropriate level of disclosure of amendments to Items 101(a) and (c), than 15 percent of the registrant’s material legal proceedings to inform under Item 101(h)? Would smaller consolidated current assets.199 investment and voting decisions of a reporting companies find it difficult to reasonable investor.211 apply a principles-based approach? As discussed in greater detail below, In response to concerns expressed by 200 Should we consider changes to any of in connection with NEPA, the legal commenters, the Commission decided the listed disclosure items in Item proceedings disclosure requirement was to retain the disclosure requirements in 101(h)(1) through (6)? expanded to require additional Item 103 without amendment and 29. We are proposing to amend Form disclosure about environmental without referral to the FASB for S–4 to conform it to changes made to matters.201 At the same time a potential incorporation into U.S. GAAP, Item 101 pursuant to the DUSTR requirement to disclose the factual basis indicating that further consideration Adopting Release as well as to the of proceedings and the nature of relief was warranted with respect to the proposed revisions to Item 101(c) sought was added, and the disclosure implications of potential changes to discussed above.192 Are the proposed threshold was reduced from 15 percent these requirements.212 revisions to Form S–4 appropriate? to 10 percent.202 In 1978, the In light of the concerns expressed by commenters in response to the DUSTR C. Legal Proceedings (Item 103) requirement was also moved from the forms to Item 5 of Regulation S–K.203 Proposing Release, and after further Item 103 requires disclosure of any consideration of how to improve the material pending legal proceedings, In the DUSTR Proposing Release, the disclosure requirements in Item 103, we other than ordinary routine litigation Commission solicited comments about are proposing the following incidental to the business, to which the whether to retain, modify, eliminate, or amendments.213 registrant or any of its subsidiaries is a refer the Item 103 disclosure party or of which any of their property requirements to the Financial 205 See, e.g., letters from Center for Audit Quality is the subject.193 Item 103 also requires Accounting Standards Board (‘‘FASB’’) (Oct. 3, 2016) (‘‘CAQ 1’’) [DUSTR letter], Corporate disclosure of the name of the court or for potential incorporation into U.S. Governance Coalition for Investor Value (Oct. 27, agency in which the proceedings are 204 2016) (‘‘CGCIV 1’’) [DUSTR letter], Davis Polk & GAAP. Many commenters opposed Wardwell LLP (Nov. 2, 2016) (‘‘Davis 1’’) [DUSTR pending, the date instituted, the the integration of Item 103 into U.S. letter], FedEx Corporation (Nov. 2, 2016) (‘‘FedEx principal parties thereto and a 1’’) [DUSTR letter], Shearman & Sterling LLP (Dec. description of the factual basis alleged 1, 2016) (‘‘Shearman 1’’) [DUSTR letter], and U.S. to underlie the proceeding and the relief Chamber of Commerce (Oct. 27, 2016) (‘‘Chamber 197 1’’) [DUSTR letter]. sought.194 Similar information is to be See Form A–2, Item 40, adopted in Release No. 33–276 (Jan. 14, 1935) [not published in the 206 See, e.g., letters from CAQ 1 and NAREIT (Oct. included for such proceedings known to Federal Register]. 28, 2016) (‘‘NAREIT 1’’) [DUSTR letter]. 207 be contemplated by governmental 198 17 CFR 239.11. Item 103 is intended to provide a description 195 of material pending legal proceedings, while U.S. authorities. 199 See Application for Registration of Securities, GAAP is designed to provide information consistent The Commission first adopted a Release No. 33–3584 (Oct. 21, 1955) [20 FR 8284]. requirement to disclose all pending with the accounting model for loss contingencies. See also Forms for Registration Statements; Notice 208 See, e.g., letters from CAQ 1 and Davis 1. litigation that may materially affect the of Proposed Rulemaking, Release No. 33–3540 (Apr. 209 See letters from CGCIV 1, Davis 1, FedEx 1, value of the security to be offered, 26, 1955) [20 FR 2965]. NAREIT 1, Shearman 1, and Chamber 1. describing the origin, nature and name 200 See NEPA, supra note 146. 210 See letters from Davis 1, Edison Electric of parties to the litigation, as part of 201 See Environmental Disclosure Adopting Institute and American Gas Association Accounting Form A–1 in 1933.196 In 1935, the Release, supra note 147. Advisory Council (Nov. 2, 2016) (‘‘EEI and AGA 1’’) 202 See id. [DUSTR letter] and Grant Thornton LLP (Nov. 1, 2016) [DUSTR letter]. 192 203 See Integrated Reporting Requirements: See supra note 85. 211 See letter from Davis 1. 193 Directors and Officers, Management Remuneration, 17 CFR 229.103. 212 See DUSTR Adopting Release, supra note 62. 194 Legal Proceedings, Principal Security Holders and See id. 213 In addition to the proposed amendments 195 See id. Security Holdings of Management, Release No. 33– discussed below, we also are proposing to 196 See Form A–1, Item 17, adopted in Release 5949 (July 28, 1978) [43 FR 34402]. reorganize Item 103 to incorporate the contents of No. 33–5 (July 6, 1933) [not published in the 204 See DUSTR Proposing Release, supra note 129 the current instructions into the text of Item 103 Federal Register]. at 51633. and to eliminate the instructions.

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1. Expressly Provide for the use of necessary and the Commission adopted Report stated that ‘‘more focused Hyperlinks or Cross-References To amendments to certain registration and disclosure could be more beneficial to Avoid Repetitive Disclosure reporting forms in 1973.218 The investors and shareholders’’ and Although Item 103 of Regulation S–K amendments required disclosure of (1) recommended that the disclosure and U.S. GAAP differ in certain the material effects that compliance requirement be amended to allow for a respects, they also have overlapping with Federal, state, and local materiality threshold, instead of disclosure requirements.214 Thus, in environmental laws may have on the requiring disclosure of all such order to comply with Item 103, capital expenditures, earnings and proceedings.227 competitive position of the registrant, registrants commonly repeat some or all Consistent with the Staff Report,228 and (2) any material pending or of the disclosures that are provided the Commission added environmental contemplated administrative or judicial elsewhere in the document, such as, for disclosure thresholds (including proceedings involving Federal, state or example, in the notes to the financial Instruction 5.C.) to current Item 103 in statements under U.S. GAAP, the local environmental laws, as well as any 229 environmental proceeding by a 1982. The 1982 amendments MD&A, and the Risk Factors sections. included new subparts A, B, and C to In an effort to encourage registrants to governmental authority.219 While these amendments called for disclosure of all Instruction 5 of Item 103, with subpart avoid duplicative disclosure, we C permitting registrants not to disclose propose to revise Item 103 to expressly environmental proceedings involving governmental authorities, the environmental proceedings to which the state that some or all of the required government is a party if the registrant information may be provided by Commission recognized that a complete description of each such proceeding reasonably believes that monetary including hyperlinks or cross-references sanctions resulting from the proceedings to legal proceedings disclosure located might cause disclosure documents to be will be less than $100,000.230 The 1981 elsewhere in the document. excessively detailed without a commensurate benefit to investors.220 proposing release for these amendments 2. Update the Disclosure Threshold for Therefore, the Commission also adopted indicated that the $100,000 threshold Environmental Proceedings in Which at that time a provision which allowed was based in part on actual fines the Government Is a Party registrants to group similar assessed in environmental proceedings Instruction 5.C. to Item 103 governmental proceedings and to at the time.231 In that release, the specifically requires disclosure of any describe them generally.221 Commission stated its belief that proceeding under environmental laws to As noted earlier,222 in 1975 the disclosure of fines by governmental which a governmental authority is a Commission initiated public authorities may be of particular party unless the registrant reasonably proceedings 223 to elicit comments on importance in assessing a registrant’s believes it will not result in sanctions of whether further rulemaking in the environmental compliance problems, $100,000 or more; provided, however, environmental area was appropriate. and that a disclosure threshold based on that such proceedings which are similar The Commission solicited comments on governmental fines may be more in nature may be grouped and described a number of issues affecting indicative of possible illegality and generally.215 environmental disclosure, such as the conduct contrary to public policy than Pursuant to NEPA, Congress required relevance of those disclosures to other measures.232 224 all Federal agencies to include informed voting decisions. The Since the current requirements in consideration of the environment in request for comments resulted in certain Instruction 5.C. to Item 103 were regulatory action.216 The Commission’s staff recommendations, as set forth in adopted in 1982, the Commission has initial action in the environmental area the 1979 Staff Report on Corporate explored ways in which environmental came in 1971 when an interpretive Accountability, concerning the disclosures could be improved for release was issued alerting registrants to Commission’s environmental disclosure 225 investors while not unduly burdening the potential disclosure obligations that provisions. The Staff Report registrants. For example, the 1996 could arise from material environmental concluded that disclosure of all Report of the Task Force on Disclosure litigation and the material effects of environmental proceedings to which a Simplification recommended replacing compliance with environmental laws.217 governmental authority is a party the $100,000 threshold with a general After an assessment of the disclosure resulted in lengthy disclosures which materiality standard or, alternatively, elicited under this release, the obscured more significant recommended raising the dollar environmental proceedings.226 The Staff Commission determined that more threshold that triggers disclosure.233 specific disclosure standards were The Task Force made this 218 See Environmental Disclosure Adopting Release, supra note 147. recommendation noting that in some 214 See supra note 207 and infra note 235. 219 See id. circumstances the ‘‘one size fits all’’ 215 17 CFR 229.103. 220 See id. approach may result in the disclosure of 216 See NEPA, supra note 146. 221 See id. information about environmental 217 See Disclosures Pertaining to Matters 222 See supra notes 148 and 149 and Involving the Environment and Civil Rights, Release proceedings not material to an accompanying text. No. 33–5170 (July 19, 1971) [36 FR 13989 (July 29, 223 See Release No. 33–5569 (Feb. 11, 1975) [40 1971)] (‘‘The Commission’s requirements for 227 FR 7013 (Feb. 18, 1975)]. As previously noted, as See id. describing a registrant’s business on the forms and 228 See id. rules under the Securities and Exchange Act call for a result of these proceedings, the Commission 229 See 1982 Integrated Disclosure Adopting disclosure, if material, when compliance with amended its forms in 1976 to specifically require Release, supra note 9. statutory requirements . . . may materially affect disclosure of any material estimated capital 230 the earning power of the business, or cause material expenditures for environmental control facilities for See id. changes in registrant’s business done or intended to the remainder of the registrant’s current fiscal year 231 See Proposed Amendments to Item 5 of be done. Further, the Commission’s disclosure and its succeeding fiscal year, and for any further Regulation S–K Regarding Disclosure of Certain requirements relating to legal proceedings call for periods that are deemed material. See Release No. Environmental Proceedings, Release No. 33–6315 disclosure, where material, of proceedings arising 33–5704, supra note 150. (May 5, 1981) [46 FR 25638 (May 8, 1981)]. . . . under statutes, Federal, state or local, 224 See Release No. 33–5569, supra note 223, at 232 See id. regulating the discharge of materials into the 7015. 233 See Report of the Task Force on Disclosure environment, or otherwise specifically relating to 225 See Staff Report, supra note 148, at 250–86. Simplification (Mar. 5, 1996), available at https:// the protection of the environment . . . .’’). 226 See id. www.sec.gov/news/studies/smpl.htm.

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investment decision.234 However, the based on imposition of a governmental proposed $300,000 threshold, e.g., to recommended changes were not fine also provides a useful benchmark $500,000, $750,000, or $1,000,000, and proposed. for registrants when determining if so, what would be the basis for that Although the DUSTR Proposing whether a particular environmental increase? Are there alternative Release did not specifically seek proceeding, which can be factually and approaches (e.g., a materiality comment on the bright-line $100,000 legally complex, should be disclosed. threshold) that would work better than threshold in Instruction 5.C. to Item Such a disclosure threshold also a bright-line dollar threshold? If so, 103,235 some commenters expressed promotes comparability among describe the approach and explain why opposition to the elimination of any registrants in the disclosure of it would be preferable to our proposal. bright-line thresholds in Commission environmental proceedings. For these 34. Form 20–F requires a foreign disclosure requirements because the reasons, we propose to retain a private issuer to provide information on thresholds establish a baseline of disclosure threshold for environmental any legal or arbitration proceedings, disclosure for all registrants in certain proceedings based on the imposition of including governmental proceedings areas.236 These commenters expressed a governmental fine. pending or known to be contemplated, concern about using a materiality However, as the $100,000 disclosure which may have, or have had in the standard for disclosure because it may threshold for environmental recent past, significant effects on the reduce the information made available proceedings in which the government is company’s financial position or to investors or diminish comparability a party has not been changed since it profitability.242 Similar to the proposed of registrants.237 was adopted in 1982, we propose to amendment to Item 103, should we Other commenters supported increase this threshold to $300,000 to amend Form 20–F to expressly state that eliminating the bright-line thresholds adjust it for inflation. Using the May some or all of the required information and generally supported a more 1981 date of the proposing release in about legal proceedings may be principles-based disclosure which the $100,000 threshold was first provided by including hyperlinks or framework.238 These commenters also mentioned and using the Consumer cross-references to legal proceedings asserted that materiality is a better Price Index (CPI) Inflation Calculator, disclosure located elsewhere? Should disclosure standard because certain of we estimate that the threshold would be we amend Form 20–F to clarify that a the existing bright-line thresholds result $285,180.40 as of May 2019.241 For ease foreign private issuer is only required to in disclosure that may not be material of reference, we propose rounding this disclose material legal proceedings? to investors, may obscure material amount up to $300,000. This increase Would either amendment reduce a information and may be costly to would reflect an inflation adjustment to foreign private issuer’s ability to use a provide.239 modernize this disclosure requirement. single disclosure document in multiple We continue to believe that a Request for Comment jurisdictions? disclosure threshold based on the imposition of a governmental fine is 30. Would our proposed revisions to D. Risk Factors (Item 105) appropriate because such a fine may be Item 103 improve disclosures required Item 105 requires disclosure of the important for investors in assessing a by the item? Are there different or most significant factors that make an registrant’s environmental additional revisions we should consider investment in the registrant or offering compliance.240 A disclosure threshold to improve Item 103 disclosure? speculative or risky and specifies that 31. Should we expressly provide for the discussion should be concise and 234 the use of hyperlinks or cross- See id. organized logically.243 The principles- 235 references, as proposed? Would the use The DUSTR Proposing Release more generally based requirement further directs discussed the overlap in disclosure that could result of multiple hyperlinks be cumbersome from compliance with the requirements under Item for investors? Are there alternative registrants to explain how each risk 103 and U.S. GAAP, which requires the disclosure recommendations that would more affects the registrant or the securities of loss contingencies (see ASC 450–20), and noted effectively decrease duplicative being offered, discourages disclosure of the differences between the two sets of risks that could apply generically to any requirements. See DUSTR Proposing Release, supra disclosure? note 129, at 51633–51634. Following a discussion 32. Should we adjust the $100,000 registrant and requires registrants to set of those differences, the Commission solicited threshold for environmental forth each risk factor under a sub- comment on whether inclusion of the Item 103 proceedings in which the government is caption that adequately describes the disclosures in the audited financial statements risk.244 would create significant burdens for issuers and a party in Item 103 for inflation, as auditors. See DUSTR Proposing Release, supra note proposed? Should this threshold be The Concept Release solicited 129 at 51635. Because of the concerns expressed by adjusted for inflation periodically, such comments on how to improve risk factor the many commenters that opposed the integration as every three years or some other disclosure and sought feedback on of Item 103 into U.S. GAAP, the Commission did several potential approaches aimed at not amend the Item 103 disclosure requirements. interval? Does CPI inflation provide an See DUSTR Adopting Release, supra note 62, at appropriate adjustment factor for facilitating more meaningful 245 50174. environmental proceedings? If not, what disclosure. Comments received were 236 See, e.g., letters from AFL–CIO (Oct. 31, 2016) adjustment factor should we use? [DUSTR letter], CalPERS (Nov. 2, 2016) [DUSTR 33. Should we instead adopt an 242 See Form 20–F, Item 8.A.7. letter], CFA Institute (Dec. 7, 2016) [DUSTR letter], 243 17 CFR 229.105. As previously noted, in the Public Citizen (Oct. 18, 2016) [DUSTR letter], and alternative threshold for environmental FAST Act Adopting Release the Commission R.G. Associates, Inc. (Nov. 2, 2016) [DUSTR letter]. proceedings disclosure? If so, what rescinded Item 503(c) of Regulation S–K and 237 See id. threshold should we use, and what data replaced it with new Item 105 of Regulation S–K. 238 See, e.g., letters from CAQ 1, CGCIV 1, or sources should provide the basis for See supra note 1. Smaller reporting companies are Chamber 1, The Clearing House Association L.L.C. not required to provide the information under Item (Oct. 28, 2016) (‘‘Clearing House’’), Davis 1, and the alternative threshold? Should we 105 in their Exchange Act filings on Form 10 [17 Financial Executives International (Oct. 27, 2016) raise the dollar threshold above the CFR 249.210], Form 10–K [17 CFR 249.310], and [DUSTR letters]. Form 10–Q [17 CFR 249.308a]. See Item 1A of Form 239 See, e.g., letters from CAQ 1, CGCIV 1, 241 See CPI Inflation Calculator, available at 10, Form 10–K, and Form 10–Q. Clearing House, Davis 1, Deloitte & Touche LLP https://data.bls.gov/cgi-bin/cpicalc.pl. The 244 See id. (Oct. 5, 2016) [DUSTR letter], EEI and AGA 1, calculator uses the Consumer Price Index for All 245 See Concept Release, supra note 6. The NAREIT 1, Shearman 1, and Chamber 1. Urban Consumers (CPI–U) U.S. city average series potential approaches discussed included, for 240 See supra note 232 and accompanying text. for all items, not seasonally adjusted. example, requiring that each risk factor be

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wide-ranging and no consensus found that registrants increased the adopted such a requirement to date in emerged. Numerous commenters length of risk factor disclosures from light of comments received in response supported a flexible or principles-based 2006 to 2014 by more than 50 percent to prior initiatives. For example, while requirement.246 Several commenters in terms of word count, compared to the the Concept Release did not seek recommended integrating risk factor word count in other sections of Form specific feedback on reducing or disclosures with other non-risk and risk- 10–K that increased only by about 10 limiting the length of risk factor related disclosures.247 Some percent, and that this increase in risk disclosure, several commenters commenters recommended further factor word count may not be associated nonetheless opposed a page limit.254 guidance on risk factor disclosure to with better disclosure.251 Commenters attributed the growing illustrate what registrants should do to A contributing factor to the increased length of risk factor disclosure to the 248 meet the Item’s disclosure objectives. length of risk factor disclosure appears risk of litigation associated with failing Other commenters supported retaining to be the inclusion of generic, to disclose risks if events turn the current approach to risk factors and boilerplate risks that could apply to any negative.255 Commenters also stated that opposed any changes to the current risk offering or registrant. Although Item 105 many companies will continue to 249 instructs registrants not to present risks factor guidance and disclosure. disclose generic risks unless assured The revisions that we are proposing to that could apply to any registrant, and that litigation will not result from the Item 105 are intended to address the despite Commission and staff guidance failure to do so.256 Similar comments lengthy and generic nature of the risk stating that risk factors should be were received in response to the general factor disclosure presented by many focused on the ‘‘most significant’’ risks solicitation of comment on the registrants. Although the length and and should not be boilerplate,252 it is Disclosure Effectiveness Initiative.257 number of risk factors disclosed by not uncommon for companies to registrants varies, studies show that risk include generic risks. Registrants often The Concept Release sought input on factor disclosures have increased in disclose risk factors that are similar to whether to require summary risk factor recent years.250 For example, one study those used by others in their industry disclosure in addition to complete risk without tailoring the disclosure to their factor disclosure and whether accompanied by a specific discussion of how the circumstances and particular risk highlighting information in a summary registrant is addressing the risk, requiring would help investors better understand registrants to discuss the probability of occurrence profile. 258 and the effect on performance of each risk factor To address these concerns, we are a registrant’s risks. Several and requiring registrants to describe their proposing the following three commenters opposed summary risk assessment of risks. amendments to the Item 105 risk factor factor disclosure, stating that a summary 246 See letters from CAQ, AFLAC, Chamber, disclosure requirement. would not add value and would result FedEx, CGCIV, NAM, ACC, SIFMA, E&Y, EEI and 259 AGA, Wilson Sonsini, NAREIT, Davis, Fenwick, 1. Require Summary Risk Factor in repetition of disclosure. Further, NIRI, Shearman, PWC, General Motors, and Disclosure if the Risk Factor Section some commenters noted that registrants Financial Executives International. Exceeds 15 Pages provide headings before each specific 247 See letters from PNC, SIFMA, CalPERS, the risk factor, which effectively act as a Carbon Tracker Initiative, Medical Benefits Trust, As a way of addressing the length of summary.260 Some commenters E&Y, and BDO. risk factor disclosure, the Commission 248 See letters from NYSSCPA, General Motors, has previously considered requiring a and Financial Executives International. 254 See letters from ACC, API, Chevron, CAQ, 253 249 See letters from Ball Corporation, API, and page limit for risk factor disclosure. PNC, Wilson Sonsini, Maryland Bar Securities Chevron. However, the Commission has not Committee, PWC, CalPERS, Four Twenty Seven, 250 See PricewaterhouseCoopers LLP, Stay Fenwick, and NYSSCPA. Informed, 2012 Financial Reporting Survey: Energy and 2013 and finding that the length of Form10– 255 See letters from Wilson Sonsini, Maryland industry current trends in SEC reporting, Feb. 2013, K has more than doubled in word length, with State Bar, and PNC. available at http://www.pwc.com/en_GX/gx/oil-gas- forward-looking risk factor disclosures being one of 256 See id. energy/publications/pdfs/pwc-sec-financial- three substantial reasons for this increase, and 257 See, e.g., letter from The Society of Corporate reporting-energy.pdf (‘‘2012 PWC Report’’). This contributing to Form 10–Ks becoming more Secretaries and Governance Professionals (Sept. 10, report reviewed financial reporting trends of 87 redundant and complex). 2014) [Disclosure Effectiveness letter] (referencing registrants with market capitalizations of at least $1 251 the Commission’s proposal to limit the number of billion that apply U.S. GAAP in the following See Anne Beatty et al., Sometimes Less is risk factors included in a filing in connection with subsectors of the energy industry: Downstream, More: Evidence from Financial Constraints Risk the Commission’s Plain English initiative and drillers, independent oil and gas, major integrated Factor Disclosures, Mar. 2015, available at http:// _ comments received in connection with that oil and gas, midstream and oil field equipment and papers.ssrn.com/sol3/papers.cfm?abstract initiative, and quoting approvingly from the letter services. Based on this study, the average number id=2186589. To examine the ‘‘informativeness’’ of of risk factors in the major integrated oil and gas risk factor disclosures, the authors of this study from the Committee on Securities Regulation of the sector was 12 while the average number of risk analyzed risk factor disclosures about financial Business Law Section of the New York State Bar factors in the midstream sector was 51. In one constraints and argue that as litigation risk Association (Mar. 21, 1997), available at http:// sector, the maximum number of risk factors was 95. increased during and after the 2008 financial crisis, www.sec.gov/rules/proposed/s7397/gutman1.htm, See also PricewaterhouseCoopers LLP, Stay registrants were more likely to disclose immaterial that ‘‘no issuer should ever be put in the position Informed: 2014 technology financial reporting risks, resulting in a deterioration of disclosure of choosing significant material risks in order to trends, Aug. 2014, available at http:// quality. satisfy a numerical limitation’’). www.pwc.com/en_US/us/technology/publications/ 252 See, e.g., Plain English Disclosure, Release No. 258 See Concept Release, supra note 6. Item 3(b) assets/pwc-2014-technology-financial-reporting- 33–7497 (Jan. 28, 1998) [63 FR 6370 (Feb. 6, 1998)] to Form S–11 includes such a requirement, stating trends.pdf (reviewing the annual and periodic (‘‘Plain English Disclosure Adopting Release’’). See that ‘‘[w]here appropriate to a clear understanding filings of 135 registrants in the software and also Updated Staff Legal Bulletin No. 7: Plain by investors, an introductory statement shall be internet, computers and networking, and English Disclosure (June 7, 1999), available at made in the forepart of the prospectus, in a series semiconductors sectors, and finding that over half https://www.sec.gov/interps/legal/cfslb7a.htm. of short, concise paragraphs, summarizing the of the registrants surveyed repeated all of their risk 253 For example, as part of the Plain English principal factors which make the offering factors in their quarterly filings); and Travis Dyer, Disclosure rulemaking, the Commission solicited speculative.’’ See 17 CFR 239.18. The risk factor Mark Lang and Lorien Stice-Lawrence, The Ever- comment on whether to limit risk factor disclosure summary included in a Form S–11 filing typically Expanding 10–K: Why Are 10–Ks Getting So Much to a specific number of risk factors or a specific consists of a series of bulleted or numbered Longer (and Does It Matter)?, The Columbia Law number of pages. See Plain English Disclosure, statements comprising no more than one page on School Blue Sky Blog (May 5, 2016), available at Release No. 33–7380 (Jan. 14, 1997), [62 FR 3152, average. http://clsbluesky.law.columbia.edu/2016/05/05/the- 3163 (Jan. 21, 1997)]. The Commission ultimately 259 See letters from SIFMA, Fenwick, NIRI, and ever-expanding-10-k-why-are-10-ks-getting-so- did not adopt such limits on risk factor disclosure General Motors. much-longer-and-does-it-matter/ (reporting the in that rulemaking. See Plain English Disclosure 260 See letters from SIFMA, Fenwick, and General results of a study of Form 10–Ks filed between 1996 Adopting Release, 63 FR at 6372. Motors.

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specified that a summary should be risk factor disclosure and the number of concern.272 As stated above, some encouraged but not required.261 risks disclosed has increased in recent commenters noted that registrants often Given the increasing length of risk years.266 provide headings before each specific factor disclosure and after considering We are proposing to update Item 105 risk factor, which act as a summary.273 the comments received, we propose to to replace the requirement to discuss the Further, one commenter noted that the amend Item 105 to require summary risk ‘‘most significant’’ risks with ‘‘material’’ grouping of related risk factors together factor disclosure if the risk factor risks. Securities Act Rule 405 defines under subheadings for clarity is a best section exceeds 15 pages.262 Lengthy ‘‘material’’ as follows: practice currently used by many risk factor disclosure and the inclusion The term material, when used to qualify a registrants as risk factors have of many general risks add to the requirement for the furnishing of information lengthened.274 complexity of disclosure documents, as to any subject, limits the information The Concept Release also solicited without necessarily providing required to those matters to which there is a comment on whether generic risk additional meaningful information to substantial likelihood that a reasonable factors are important to investors and if investors. When registrants provide risk investor would attach importance in not, how to discourage this disclosure that exceeds 15 pages, we determining whether to purchase the disclosure.275 As noted above, several security.267 propose to require registrants to provide commenters discussed the importance summary risk factor disclosure in the We propose revising the standard for of including both specific and generic forepart of the prospectus or annual disclosure from the ‘‘most significant’’ risk disclosures.276 One of these report, as applicable, under an risks to ‘‘material’’ risks to focus commenters supported revising the appropriately captioned heading. The registrants on disclosing the risks to current text of Item 105 to eliminate the summary would consist of a series of which reasonable investors would proscription against including ‘‘risks short, concise, bulleted or numbered attach importance in making investment that could apply to any issuer or statements summarizing the principal decisions. We believe that this approach offering.’’ 277 In contrast, many factors that make an investment in the could result in risk factor disclosure that commenters opposed inclusion of registrant or offering speculative or is more tailored to the particular facts generic risk factors.278 risky. The proposed 15-page threshold and circumstances of each registrant, We are proposing to require may provide registrants with an which would reduce the amount of risk registrants to organize their risk factor incentive to limit the length of their risk factor disclosure that is not material and disclosure under relevant headings in factor disclosure. We estimate that a 15- potentially shorten the length of the risk an effort to help readers comprehend page threshold would affect factor discussion, to the benefit of both lengthy risk factor disclosures. As noted approximately 40 percent of current investors and registrants.268 above, many registrants already do this 263 and we believe that further organization filers. If registrants determine that it 3. Require Registrants To Organize Risk within risk factor disclosure will is appropriate to provide risk factor Factors Under Relevant Headings disclosure that exceeds 15 pages, improve the effectiveness of the summary risk factor disclosure Since 1964, the Commission has disclosures. In addition, if a registrant highlighted in the forepart of the periodically emphasized the importance chooses to disclose a risk that could document should enhance the of organized and concise risk factor apply to other companies or securities readability and usefulness of this disclosure.269 The Concept Release offerings and the disclosure does not disclosure for investors. We believe that solicited feedback on the ways in which provide an explanation of why the this approach would appropriately we could improve the organization of identified risk is specifically relevant to balance the need to provide more registrants’ risk factor disclosure to help an investor in its securities, we are focused disclosure about a registrant’s investors better navigate the proposing to require the registrant to risk profile with the concerns raised by disclosure.270 Several commenters disclose such risk factors at the end of commenters about imposing page limits supported grouping similar risks the risk factor section under the caption on risk factor disclosure. together,271 with one commenter noting ‘‘General Risk Factors.’’ that the current organizational structure, 2. Replace the Requirement To Disclose and not the length, of risk factor Request for Comment the ‘‘Most Significant’’ Factors With the disclosure, should be the primary 35. Would our proposed approach to ‘‘Material’’ Factors Item 105 result in improved risk factor Since the Commission first published 266 See supra notes 250 and 251 and disclosure for investors? guidance on risk factor disclosure in accompanying text. 36. Would our proposal to require 1964,264 it has underscored that risk 267 17 CFR 230.405. Exchange Act Rule 12b–2 summary risk factor disclosure if the defines materiality similarly: ‘‘The term ‘material,’ factor disclosure should be focused on when used to qualify a requirement for the the ‘‘most significant’’ or ‘‘principal’’ furnishing of information as to any subject, limits 272 See letter from Wilson Sonsini. factors that make a registrant’s securities the information required to those matters to which 273 See letters from SIFMA, Fenwick, and General speculative or risky.265 Notwithstanding there is a substantial likelihood that a reasonable Motors. 274 this additional guidance, the length of investor would attach importance in determining See letter from Fenwick. whether to buy or sell the securities registered.’’ 12 275 See Concept Release, supra note 6. CFR 240.12b–2 (emphasis added). 276 See letters from E&Y, Maryland Bar Securities 261 See letters from E&Y and Deloitte. 268 For a discussion of the potential economic Committee, and CalPERS (refuting the notion that 262 Commission staff reviewed a representative effects of switching from a ‘‘most significant’’ risks generic and boilerplate risk factors cannot impart sample of filings to help determine the proposed to a ‘‘material risks’’ disclosure standard, including material information); see also letter from threshold. See infra Section IV, note 314. the possibility that the change could result in either NYSSCPA (stating that generic and boilerplate risk 263 See infra Section IV.B.2. more or less expansive disclosure, see infra Section factors should be included if critical to the overall 264 See Guides for Preparation and Filing of IV.B.2.iv. understanding of a registrant’s business Registration Statements, Release No. 33–4666 (Feb. 269 See 1964 Guides, supra note 264; 1982 environment). 7, 1964) [29 FR 2490 (Feb. 15, 1964)] (‘‘1964 Integrated Disclosure Adopting Release, supra note 277 See letter from E&Y. Guides’’). 9; and Securities Offering Reform, Release No. 33– 278 See letters from EEI and AGA, Investment 265 ‘‘Principal’’ was the term used in the 1982 8591 (July 19, 2005) [70 FR 44722 (Aug. 3, 2005)]. Program Association (July 21, 2016), NAREIT, Integrated Disclosure Adopting Release and ‘‘most 270 See Concept Release, supra note 6. Better Markets (July 21, 2016), Davis, Fenwick, significant’’ was the term used in the Plain English 271 See letters from PNC, Fenwick, and Wilson Reardon, NIRI, Financial Services Roundtable, Disclosure Adopting Release. Sonsini. Shearman and A. Radin.

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risk factor discussion exceeds 15 pages this improve disclosures for investors or requirements in Regulation S–K.279 An result in improved risk factor disclosure be unduly burdensome for registrants? important objective of the proposed for investors? 44. If the registrant discloses generic amendments is to revise Items 101(a), 37. Is 15 pages an appropriate number risk factors, should the registrant be 101(c), and 105 to be more principles- of pages to trigger summary risk factor required to disclose them at the end of based. Overall, investors and registrants disclosure? If not, what is the the risk factor section, and caption them may benefit from the proposed appropriate page limit that should as General Risk Factors, as proposed? principles-based approach if the trigger summary risk factor disclosure? 45. Should we require registrants to existing prescriptive requirements result Is there a better alternative than a page explain how generic, boilerplate risk in disclosure that is not material to an limit to trigger summary risk factor factors are material to their investors, investment decision and is costly to disclosure (e.g., should we consider a and what, if anything, management does provide. We acknowledge the risk that word limit instead)? to address these risks? emphasizing a principles-based 38. If summary risk factor disclosure 46. Foreign private issuers that file approach and granting registrants more is triggered, should we require the their Exchange Act annual reports on flexibility to determine what and how summary to consist of a series of short, Form 20–F must provide risk factor much disclosure about a topic to concise, bulleted or numbered disclosure as required by that Form provide may result in the elimination of statements summarizing the principal whereas foreign private issuers that file some information to investors. However, factors that make an investment in the registration statements on Forms F–1, we believe that any such loss of registrant or offering speculative or F–3, and F–4 must provide risk factor information would be limited given risky, as proposed? Should we in disclosure pursuant to Item 105. that, under the proposed principles- addition or instead limit the length of Currently Form 20–F does not require a based approach, registrants still would the summary disclosure (e.g., no more summary of the risk factors if the risk be required to provide disclosure about than one page)? Should we require the factor disclosure exceeds a certain page these topics if they are material to the bulleted or numbered statements limit, does not state that material risks business. summarizing the risk factors to also should be disclosed, and does not We are sensitive to the costs and include hyperlinks to each of the risk require the presentation of risk factors, benefits of these amendments. The factors summarized? including generic risk factors, under discussion below addresses the 39. If the risk factors discussion appropriate headings. Should we amend potential economic effects of the exceeds 15 pages, should we require a Form 20–F to include any or all of the proposed amendments, including the registrant to include only those risk proposed risk factor disclosure likely benefits and costs, as well as the factors that pose the greatest risk to the provisions under Item 105? If we do not likely effects on efficiency, competition, registrant in the first 15 pages instead of similarly amend risk factor disclosure and capital formation.280 At the outset, requiring it to prepare a risk factor under Form 20–F, would having one set summary? of risk factor disclosure requirements for 279 While Items 101, 103 and 105 have not 40. Should we specify that registrants Form 20–F annual reports and another undergone significant revisions in over thirty years, should present summary risk factor set for registration statements on Forms many characteristics of the registrants have changed disclosure in the forepart of the substantially over this time period. For example, in F–1, F–3, and F–4 cause confusion for 1988, the largest 500 U.S. companies in Standard prospectus or annual report, as registrants or investors? & Poor’s Compustat database had an average market proposed? Alternatively, should the 47. How might we further improve capitalization of $4.27 billion, foreign income of summary immediately precede the full risk factor disclosure? $281 million, and ratio of intangible assets to discussion of risk factors? Currently, market capitalization of 8.44%. The largest 100 III. General Request for Comments companies had an average market capitalization of when the risk factor discussion is $12.25 billion, foreign income of $730 million, and included in a registration statement, it We request and encourage any ratio of intangible assets to market capitalization of must immediately follow the summary interested person to submit comments 7.07%. In 2018, the largest 500 companies had an section. Should registrants be permitted on any aspect of our proposals, other average market capitalization of $49.10 billion, foreign income of $1.70 billion, and ratio of to provide the full discussion of risk matters that might have an impact on intangible assets to market capitalization of 29.70%. factors elsewhere in the document to the proposed amendments, and any The largest 100 companies had an average market enhance readability when a summary suggestions for additional changes. With capitalization of $ 141.46 billion, foreign income of section is included? respect to any comments, we note that $5.18 billion, and ratio of intangible assets to market capitalization of 32.62%. There is also 41. Would changing the standard from they are of greatest assistance to our significant turnover among the largest companies: the requirement to discuss the ‘‘most rulemaking initiative if accompanied by approximately 34% of top 50 companies in 1988 significant’’ factors to the ‘‘material’’ supporting data and analysis of the were still in the top 50 companies on 2018. We factors, as proposed, result in more issues addressed in those comments and believe that certain of the proposed amendments (the disclosure of the material effects of compliance tailored disclosure and reduce the by alternatives to our proposals where with material government regulations, including length of the risk factor disclosure? appropriate. foreign government regulations) would provide Would changing the standard, as investors with information consistent with the IV. Economic Analysis proposed, result in other consequences changing nature of the registrants. that we have not considered? If so, This section analyzes the expected 280 Section 2(b) of the Securities Act [15 U.S.C. economic effects of the proposed 77b(b)] and Section 3(f) of the Exchange Act [17 provide specific examples of such U.S.C. 78c(f)] require the Commission, when consequences. amendments relative to the current engaging in rulemaking where it is required to 42. Would our proposal that baseline, which consists of both the consider or determine whether an action is registrants organize their risk factors regulatory framework of disclosure necessary or appropriate in the public interest, to requirements in existence today and the consider, in addition to the protection of investors, under relevant headings improve whether the action will promote efficiency, disclosures for investors? current use of such disclosure by competition, and capital formation. Further, Section 43. Should we require registrants to investors. As discussed above, we 23(a)(2) of the Exchange Act [17 U.S.C. 78w(a)(2)] prioritize the order in which they propose amendments to modernize and requires the Commission, when making rules under simplify the description of business the Exchange Act, to consider the impact that the discuss their risk factors so that the risk rules would have on competition, and prohibits the factors that pose the greatest risk to the (Item 101), legal proceedings (Item 103), Commission from adopting any rule that would registrant are discussed first? Would and risk factor (Item 105) disclosure Continued

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we note that, where possible, we have that approximately 6,919 registrants which set forth explicit criteria for attempted to quantify the benefits, costs, filing on domestic forms 284 and 393 disclosure. The economic effects of and effects on efficiency, competition, foreign private issuers filing on foreign replacing a prescriptive requirement and capital formation expected to result forms would be affected by the with a more principles-based disclosure from the proposed amendments. In proposed amendments. Among the standard based on materiality depend many cases, however, we are unable to registrants that file on domestic forms, on a variety of factors, including the quantify the economic effects because approximately 29 percent are large preferences of investors, the compliance we lack information necessary to accelerated filers, 19 percent are costs of producing the disclosure and provide a reasonable estimate. For accelerated filers, 19 percent are non- the nature of the information to be example, we are unable to quantify, accelerated filers, and 33 percent are disclosed. with precision, the costs to investors of smaller reporting companies. In For certain existing disclosure utilizing alternative information sources addition, we estimate that requirements, shifting to a more under each disclosure item and the approximately 21.3 percent of domestic principles-based approach could benefit potential information processing cost issuers are emerging growth issuers with no loss of investor savings that may arise from the companies.285 protection because the current elimination of disclosures not material requirements occasionally result in B. Potential Costs and Benefits to an investment decision. some disclosure that is immaterial to an In this section, we discuss the investment decision and costly for A. Baseline and Affected Parties anticipated economic benefits and costs issuers to provide. Elimination of Our baseline includes the current of the proposed amendments. We first disclosure that is not material could disclosure requirements under Items analyze the overall economic effects of reduce compliance burdens and 101, 103, and 105 of Regulation S–K, shifting toward a more principles-based potentially benefit investors, to the which apply to registration statements, approach to disclosure, which is one of extent it improves the readability and periodic reports, and certain proxy the main objectives of the proposed conciseness of the information statements filed with the Commission. amendments. We then discuss the provided.287 In addition, a principles- Thus, the parties that are likely to be potential costs and benefits of specific based approach may permit or affected by the proposed amendments proposed amendments. encourage registrants to present more include investors and other users of 1. Principles-Based Versus Prescriptive tailored information, which also may registration statements and periodic benefit investors.288 reports, and proxy statements, such as Requirements financial analysts, as well as registrants Prescriptive requirements employ 287 See A. Lawrence, Individual Investors and subject to Regulation S–K. bright-line, quantitative thresholds to Financial Disclosure, 56 J. Acct. & Econ., 130¥147 The proposed amendments affect both identify when disclosure is required, or (2013). Using data on trades and portfolio positions of 78,000 households, this article shows that domestic issuers and foreign private require registrants to disclose the same individuals invest more in firms with clear and issuers 281 that file on domestic types of information. Principles-based concise financial disclosures. This relation is forms 282 and foreign private issuers that requirements, on the other hand, reduced for high frequency trading, financially- file on foreign forms.283 We estimate provide registrants with the flexibility to literate, and speculative individual investors. The article also shows that individuals’ returns increase determine (i) whether certain with clearer and more concise disclosures, implying impose a burden on competition not necessary or information is material, and (ii) how to such disclosures reduce individuals’ relative appropriate in furtherance of the Exchange Act. disclose such information. information disadvantage. A one standard deviation 281 See supra note 24 for the definition of foreign In this release, we propose to revise increase in disclosure readability and conciseness private issuer. corresponds to return increases of 91 and 58 basis 282 The number of issuers that file on domestic Items 101(a), 101(c), and 105 to be more points, respectively. The article acknowledges that, forms is estimated as the number of unique issuers, principles-based.286 Principles-based given the changes in financial disclosure standards identified by Central Index Key (CIK), that filed requirements may result in more or less and the possible advances in individual investor Forms 10–K and 10–Q, or an amendment thereto, detail than prescriptive requirements, sophistication, the extent to which these findings, with the Commission during calendar year 2018. which are based on historical data from the 1990s, We believe that these filers are representative of the would differ from those today is unknown. Recent registrants that would primarily be affected by the that filed Forms F–1, F–3, and F–4, or an advances in information processing technology, proposed amendments. For purposes of this amendment thereto with the Commission during such as machine learning for textual analysis, may economic analysis, these estimates do not include calendar year 2018. See also supra note 24. also affect the generalizability of these findings. issuers that filed only initial domestic Securities 284 This number includes fewer than 25 foreign 288 A number of academic studies have explored Act registration statements during calendar year issuers that file on domestic forms and the use of prescriptive thresholds and materiality 2018, and no Exchange Act reports, in order to approximately 100 business development criteria. Many of these papers highlight a preference avoid including entities, such as certain co- companies. for principles-based materiality criteria. See, e.g. registrants of debt securities, which may not have 285 An ‘‘emerging growth company’’ is defined as Eugene A. Imhoff Jr. and Jacob K. Thomas, independent reporting obligations and therefore an issuer that had total annual gross revenues of Economic consequences of accounting standards: would not be affected by the proposed less than $1.07 billion during its most recently The lease disclosure rule change, 10.4 J. Acct. & amendments. Nevertheless, the proposed completed fiscal year. See 17 CFR 230.405 and 17 Econ. 277–310 (1988) (providing evidence that amendments would affect any registrant that files CFR 240.12b–2. See Rule 405; Rule 12b–2; 15 U.S.C. management modifies existing lease agreements to a Securities Act registration statement and assumes 77b(a)(19); 15 U.S.C. 78c(a)(80); and Inflation avoid crossing rules-based criteria for lease Exchange Act reporting obligations. We believe that Adjustments and Other Technical Amendments capitalization); Cheri L. Reither, What are the best most registrants that have filed a Securities Act under Titles I and II of the JOBS Act, Release No. and the worst accounting standards?, 12.3 Acct. registration statement, other than the co-registrants 33–10332 (Mar. 31, 2017) [82 FR 17545 (Apr. 12, Horizons 283 (1998) (documenting that due to the described above, would be captured by this 2017)]. We based the estimate of the percentage of widespread abuse of bright-lines in rules for lease estimate through their Form 10–K and Form 10–Q emerging growth companies on whether a registrant capitalization, SFAS No. 13 was voted the least filings. The estimates for the percentages of smaller claimed emerging growth company status, as favorite FASB standard by a group of accounting reporting companies, accelerated filers, large derived from Ives Group Audit Analytics data. academics, regulators, and practitioners); accelerated filers, and non-accelerated filers are 286 Although Items 101(c) and Item 105 use a Christopher P. Agoglia, Timothy S. Doupnik, and based on data obtained by Commission staff using principles-based approach, based on comments George T. Tsakumis. Principles-based versus rules- a computer program that analyzes SEC filings, with received on prior initiatives, it appears that some based accounting standards: The influence of supplemental data from Ives Group Audit registrants may view these items as imposing standard precision and audit committee strength on Analytics. prescriptive requirements. See supra Sections II.B financial reporting decisions, 86.3 The Acct. Rev. 283 The number of affected issuers that file foreign and II.D. Therefore, we are proposing amendments 747–767 (2011) (conducting experiments in which forms is estimated as the number of unique to emphasize the principles-based approach of experienced financial statement preparers are companies, identified by Central Index Key (CIK), these items. placed in a lease classification decision context and

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On the other hand, shifting to a more due to the qualitative nature of the these situations, the more standardized principles-based approach may result in disclosures in Items 101(a), 101(c), and prescriptive requirements are less likely the elimination of disclosure material to 105. Prescriptive requirements also may to elicit information that is tailored to a an investment decision if issuers be easier to apply, saving registrants the specific company. A principles-based misjudge what information is costs associated with materiality approach may also be more appropriate material.289 To the extent that assessments. for disclosures that are episodic in prescriptive requirements result in more Some of the costs of shifting to a more nature since investors may derive complete disclosures, such principles-based approach could be relatively less value from comparisons requirements could benefit investors by mitigated by external disciplines, such of such disclosure for a given registrant reducing information asymmetry. as the Commission staff’s filing review over time. In addition, registrants may Reducing information asymmetry may program. In addition, registrants would derive relatively less benefit from also benefit registrants by improving remain subject to the antifraud applying a standardized prescriptive stock market liquidity and decreasing provisions of the securities laws.292 approach to episodic disclosures, which cost of capital.290 Further, prescriptive There also may be incentives for may be less amenable to routinized standards could enhance the registrants to voluntarily disclose reporting than periodic disclosures of comparability and verifiability of additional information if the benefits of information that arise on a regular basis. information.291 We acknowledge, reduced information asymmetry exceed however that differences between the disclosure costs. 2. Benefits and Costs of Specific principles-based standards and Differences between the principles- Proposed Amendments prescriptive standards have been based and prescriptive approaches are We expect the proposed amendments studied in the accounting context. These likely to vary across registrants, would result in costs and benefits to differences may be narrower in the investors, and disclosure topics. Despite registrants and investors, and we context of the proposed amendments potential costs associated with discuss those costs and benefits materiality assessments, replacing qualitatively, item by item, in this finding that preparers applying principles-based prescriptive requirements with section. The proposed changes to each accounting are less likely to make aggressive principles-based requirements is likely item would impact the compliance reporting decisions than preparers applying a more to reduce compliance costs because precise rules-based standard and supporting the burden for registrants in filing particular notion that a move toward principles-based registrants would have the flexibility to forms. Overall, we expect the net effect accounting could result in better financial determine whether certain information of the proposed amendments on a reporting); Usha Rodrigues and Mike Stegemoller, is material under the principles-based registrant’s compliance burden to be An inconsistency in SEC disclosure requirements? approach. To the extent the principles- The case of the ‘‘insignificant’’ private target, 13.2– limited. The quantitative estimates of 3 J. Corp. Fin. 251–269 (2007) (providing evidence, based approach reduces compliance changes in those burdens for purposes in the context of mergers and acquisitions, where costs, the cost reduction should be more of the Paperwork Reduction Act are rule-based thresholds deviate from investor beneficial to smaller registrants that are preferences). Papers that highlight a preference for further discussed in Section V. As financially constrained. Although explained in the item-by-item rules-based materiality criteria are cited below. eliminating information that is not 289 The presence of other controls, including discussion of the proposed amendments accounting controls, likely reduces the risk that material should benefit all investors, it in this section, we expect certain issuers will misjudge what information is material. could benefit retail investors more since aspects of the proposed amendments to 290 See, e.g., C. Leuz and P. Wysocki, The they are less likely to have the time and increase compliance burdens, while Economics of Disclosure and Financial Reporting resources to devote to reviewing and Regulation: Evidence and Suggestions for Future others are expected to decrease the Research, 54.2 Journal of Accounting Research 525– evaluating disclosure. At the same time, burdens. Taken together, we estimate 622 (2016) (surveying the empirical literature on the smaller registrants with less established that the proposed amendments are economic consequences of disclosure and reporting histories may be the most at likely to result in a net decrease of discussing potential capital-market benefits from risk of persistent information disclosure and reporting, such as improved market between three and five burden hours per liquidity and decreased cost of capital). asymmetries if the principles-based form for purposes of the Paperwork 291 See Mark W. Nelson, Behavioral evidence on approach results in loss of information Reduction Act.293 the effects of principles-and rules-based standards, material to investors. In the event of loss 17.1 Accounting Horizons 91–104 (2003); and of material information (the risk of i. General Development of Business Katherine Schipper, Principles-based accounting which, as noted above, is offset by (Item 101(a)) standards, 17.1 Accounting Horizons 61–72 (2003) (noting potential advantages of rules-based mitigants including accounting controls Item 101(a) requires a description of accounting standards, including: Increased and the antifraud provisions of the the general development of the comparability among firms, increased verifiability securities laws), retail investors in these registrant’s business, such as the year in for auditors, and reduced litigation for firms). See registrants may be more affected than also Randall Rentfro and Karen Hooks, The effect which the registrant was organized and of professional judgment on financial reporting institutional investors because obtaining the nature and results of any merger of comparability, 1 Journal of Accounting and Finance information from alternative sources the registrant or its significant Research 87–98 (2004) (finding that comparability could involve monetary costs, such as subsidiaries. Some academic research in financial reporting may be reduced under database subscriptions, or opportunity principles-based standards, which rely more has found that information required heavily on the exercise of professional judgment but costs, such as time spent searching for under Item 101(a) is relevant to firm comparability may improve as financial statement alternative sources, and these costs may value. For example, the registrant’s age preparers become more experienced and hold fall more heavily on retail investors than can predict its growth rates 294 and higher organizational rank); Andrew A. Acito, on institutional investors. Jeffrey J. Burks, and W. Bruce Johnson, The Materiality of Accounting Errors: Evidence from Across different disclosure topics, the 293 See infra Section V.B. SEC Comment Letters, 36.2 Contemp. Acct. Res. principles-based approach may be more 294 See David S. Evans, The Relationship between 839, 862 (2019) (studying managers’ responses to appropriate for topics where the Firm Growth, Size, and Age: Estimates for 100 SEC inquiries about the materiality of accounting relevant information tends to vary Manufacturing Industries, 35 J. Indus. Econ. 567– errors and finding that managers are inconsistent in 81 (1987) (finding that firm growth decreases with their application of certain qualitative greatly across companies because, in both firm size and age). See also C. Arkolakis, T. considerations and may omit certain qualitative Papageorgiou, and O. A. Timoshenko, Firm considerations from their analysis that weigh in 292 See, e.g., Exchange Act Rule 10b–5(b) [17 CFR Learning and Growth, 27 Rev. Econ. Dyn. 146–168 favor of an error’s materiality). 240.10b–5(b)]. Continued

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corporate innovation.295 Merger registrants have the flexibility to corporate success 299 and an essential activities can affect shareholder value determine the appropriate timeframe, component of business model design,300 and predict future performance.296 this proposed amendment is likely to investors may benefit from any increase Given the relevance of such information reduce compliance costs. Investors may in the disclosure of material changes to to firm value, and thus investors, the also benefit if the timeframe chosen by previously disclosed business strategies. effects of the proposed amendments to the registrants is more consistent with Since we are not proposing to make the Item 101(a) on investors would depend their preferences than the prescribed disclosure of business strategy on whether they result in more five-year timeframe, but may be harmed mandatory if a registrant has not concise 297 and material disclosures of if the timeframe chosen by the previously disclosed its business business development information registrants is less consistent with their strategy, the costs of revealing under Item 101(a). preferences than the prescribed five- proprietary information that could be We propose to revise the requirements year timeframe. harmful to registrants’ competitive in Item 101(a) to be more principles Currently, Item 101(a) requires positions should be somewhat limited. based, requiring disclosure of registrants to describe their business Overall, investors and registrants may information material to an development in registration statements benefit from the proposed amendments understanding of the general and annual reports. For filings to Item 101(a) if the existing development of the registrant’s subsequent to the initial registration requirements elicit disclosure that is not business. The shift to a more principles- statement, we propose revising Item material to an investment decision and/ based approach for these requirements 101(a)(1) to require only an update of or is more costly to provide. However, would give rise to the potential this disclosure with an active hyperlink granting registrants additional flexibility economic effects discussed in Section to the registrant’s most recently filed to determine (i) whether certain IV.B.1 above. disclosure that, together with the information is material, and (ii) how to Currently, Item 101(a) requires update, would present a complete disclose such information may result in registrants to describe their business discussion of the general development the elimination of information in cases development during the past five years, of its business.298 If duplicative in which issuers stop disclosing or such shorter period as the registrant disclosure distracts investors from other information material to an investment may have engaged in business. We important information, the proposal decision. propose to eliminate the prescribed five- may benefit investors by highlighting year timeframe for this disclosure. ii. Narrative Description of Business material developments in the reporting (Item 101(c)) Eliminating this specific requirement period. However, to the extent that Item 101(c) requires a narrative would provide registrants with historical information would be description of the registrant’s business. flexibility to choose a different available through hyperlinking as The current requirement identifies timeframe that is more relevant in opposed to being in the same filing, twelve specific items that must be describing their business development investors would have to spend more disclosed to the extent material to an to investors. For example, a long time to retrieve the information from understanding of the registrant’s timeframe might be less appropriate for another disclosure document. Because business taken as a whole. We propose registrants operating in rapidly changing the proposed provisions would involve to revise the requirements in Item 101(c) environments where historical the use of only one hyperlink, we to be more clearly principles based. The information becomes irrelevant in a believe the increase in retrieval costs for short period of time. Given that proposed amendments would require a investors would be minimal. While description of the business and would registrants may incur minimal set forth seven non-exclusive examples (2018) (developing a theoretical model showing that compliance costs to include hyperlinks, firm growth rates decrease with firm age and of information to be disclosed if calibrating the model using plant-level data). we believe registrants would benefit material to an understanding of the 295 See Elena Huergo and Jordi Jaumandreu, How from the proposal due to the reduction Does Probability of Innovation Change with Firm in costs to disclose duplicative 299 See Jay B. Barney, Strategic Factor Markets: Age?, 22 Small Bus. Econ. 193–207 (2004) (finding information. that, as a firm’s age increases, the innovation rate Expectations, Luck, and Business Strategy 32 Mgmt. Sci. 1231–41 (1986) (suggesting that strategies diminishes and attributing this finding to the rapid We propose to amend Item 101(a) to focusing on creating imperfectly competitive innovation necessary for a firm to compete when provide a non-exclusive list of topics product markets may not generate superior entering a market); A. Coad, A. Segarra, and M. that should be disclosed if material. performance if the cost of implementing such Teruel, Innovation and Firm Growth: Does Firm Age Providing potential disclosure topics strategies is high, and that strategic choices should Play a Role?, 45 Res. Policy 387–400 (2016) (finding flow mainly from the analysis of its antecedent that young firms undertake riskier innovation and should clarify the requirements and avoid potential confusion among unique skills and capabilities, rather than from the receive larger benefits from R&D). analysis of its competitive environment). See also 296 See Sara B. Moeller, Frederik P. registrants. Besides items currently T. Ritter and H. G. Gemunden, The Impact Of A Schlingemann, and Rene M. Stulz, Wealth required under Item 101(a), the Company’s Business Strategy on Its Technological Destruction on a Massive Scale? A Study of proposed topics also include material Competence, Network Competence and Innovation Acquiring-Firm Returns in the Recent Merger Wave, Success, 57(5) J. Bus. Res. 548–556 (2004) (finding 60 J. Fin. 757–82 (2005) (finding that, although changes to a registrant’s previously that a company’s innovation success is positively small gains were made in the 1980s, investors disclosed business strategy, which is not correlated with the strength of its technology- experienced negative gains from 1998 to 2001, and currently required to be disclosed. Since oriented business strategy). firms that announce acquisitions with large dollar several studies have found that business 300 See David J. Teece, Business Models, Business losses performed poorly afterwards). See also Ran strategy is a critical determinant of Strategy and Innovation, 43 Long Range Plan. 172– Duchin and Breno Schmidt, Riding the Merger 94 (2009) (examining the significance of business Wave: Uncertainty, Reduced Monitoring, and Bad models and explorings their connections with Acquisitions, 107 J. Fin. Econ. 69–88 (2013) (finding 298 A registrant would be required to incorporate business strategy, innovation management, and that the average long-term performance of by reference the earlier disclosure into the updated economic theory). See also P. Spieth, D. acquisitions initiated during merger waves is filing. See supra Section II.A.2. We are also Schneckenberg, K. Matzler, Exploring the Linkage significantly worse than those initiated off the proposing to permit a smaller reporting company, between Business Model (&) Innovation and the waves). for filings other than initial registration statements, Strategy of the Firm, 46 R&D Mgmt. 403–413 (2016) 297 Investors may benefit from more concise to provide an update to the general development of (examining firm strategy-business model linkage disclosure that facilitates their ability to focus on the business disclosure, instead of a full discussion, and exploring the role of business model innovation information material to an investment decision. See that complies with proposed Item 101(a)(2), as analytic perspective for identifying sources of supra note 286 for details. including the proposed hyperlink requirement. firm performance).

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business. These examples include some, development, and retention of investors. However, we believe that any but not all, of the topics currently personnel. In one meta-analysis, which such costs would be limited given that, required under Item 101(c) as well as reviewed 66 studies, the authors found under the proposed principles-based some additional topics. Emphasizing a that besides the number of employees, approach, the list of disclosure topics is principles-based approach to Item other human capital characteristics, not exhaustive and registrants still 101(c) would give rise to the potential including education, experience, and would be required to provide disclosure economic effects discussed in Section training,303 have positive effects on firm about these topics if they are material to I.B.1 above. In addition, eliminating performance. Another author found that an understanding of the business. prescriptive requirements for certain turnover rates reflect human resource Additionally, in an effort to items, such as the number of employees, management practices.304 Therefore, it consolidate working capital disclosure may diminish comparability across is possible that investors may benefit in one location and to avoid duplicative firms. from additional information elicited by disclosure, we propose not to include The topics that would be retained as the human capital topic. Registrants working capital practices as a potential examples under the proposed would incur incremental compliance topic in Item 101(c), with the amendments are: (1) Principal products costs to provide this additional expectation that working capital would produced and services rendered, and information, if they determine that it is be discussed in a registrant’s MD&A, to dependence on certain customers; (2) material. the extent material. If duplicative new products and competitive We also propose to replace the disclosure distracts investors from other conditions; (3) sources and availability requirement to disclose the material important information, the proposal of raw materials and intellectual effects on the registrant of compliance may benefit investors by reducing property; (4) business subject to with environmental laws with a repetition and facilitating more efficient renegotiation or termination of disclosure topic that covers the material information processing. However, to the government contracts; (5) seasonality of effects of compliance with material extent that information on working the business; and (6) the material effects government regulations, including capital practices would no longer be of compliance with environmental environmental laws. To the extent that readily available in multiple locations, laws.301 Since the information required information about compliance with investors may have to spend more time under Item 101(c) may be relevant to government regulations affects firm to retrieve the information. Registrants firm value,302 investors and registrants value, investors may benefit from may marginally benefit from reduced would likely benefit if the proposed additional information about the effects compliance costs from the elimination examples elicit information material to of material government regulations. of duplicative disclosure. an investment decision while allowing Registrants, however, will incur Overall, investors and registrants may registrants to tailor the disclosure to incremental compliance costs to provide benefit from the proposed amendments their specific circumstances. this information, if they determine that to Item 101(c) if the existing Two of the proposed topics are more it is material to an understanding of requirements result in disclosure that is expansive than the current disclosure their business. To the extent that many not material to an investment decision requirements contained in Item 101(c). registrants already disclose such and/or is costly to provide. We propose to replace the requirement information, the incremental benefits to disclose the number of employees and costs could be limited. iii. Legal Proceedings (Item 103) with a description of the registrant’s Some of the disclosure requirements Item 103 requires disclosure of human capital resources, including in currently contained in Item 101(c) material pending legal proceedings and such description human capital would not be included as potential other relevant information about the measures or objectives that management topics in the revised rule.305 To the proceedings, such as the name of the focuses on in managing the business, to extent that the exclusion of these items court, the date instituted, and the the extent such disclosures would be results in a loss of material principal parties involved. Given that material to an understanding of the information,306 there may be costs to involvement in legal proceedings can registrant’s business. The proposed affect a firm’s cash flows through amendment provides non-exclusive 303 See T. R. Crook, S. Y Todd, J. G. Combs, D. multiple channels, including legal fees, examples of human capital measures J. Woehr, & D. J. Ketchen Jr., Does human capital the cost of executives being distracted matter? A meta-analysis of the relationship between and objectives, such as measures or human capital and firm performance, 96 J. Appl. from their main operational tasks, objectives that address the attraction, Psychol. 443–56 (2011). reputational costs, and settlement costs, 304 See M.A. Huselid, The Impact of Human information required under Item 103 is 301 The current Item 101(c) requirement to Resource Management Practices on Turnover, relevant to firm value. Several studies disclose the number of a registrant’s employees Productivity, and Corporate Financial Performance, potentially would be encompassed by the proposed 38 Acad. Manag. J. 635–672 (1995). also have found that the possibility of more expansive human capital resources disclosure 305 The proposed amendments would no longer legal proceedings may affect corporate topic. See supra Section II.B.7. list the following topics: Disclosure about new decisions, such as pricing of 302 For example, some academic research has segments and dollar amount of backlog orders securities 307 and management’s found that the introduction of a new product believed to be firm, in addition to working capital information dissemination.308 increases long-term financial performance of the practices, which we discuss below. company and firm value. See Dominique Hanssens, 306 An academic article shows that acquisition of Koen Pauwels, Jorge Silva-Risso, and Shuba new segments has significant effects on firm one could anticipate that availability of material Srinivasan, New Products, Sales Promotions, and productivity. Firms diversifying into a new segment information on new segments and dollar amount of Firm Value: The Case of the Automobile Industry, experience a net reduction in productivity. While backlog orders believed to be firm could benefit 68 J. Marketing 142–56 (2004).and Amil Petrin, productivity of new plants increases, incumbent investors. Quantifying the Benefits of New Products: The Case plants suffer. See Antoinette Schoar, The Effect of 307 See Michelle Lowry and Susan Shu, Litigation of the Minivan, 110 J. Pol. Econ. 705–29 (2002). Diversification on Firm Productivity, 62 J. Fin. Risk and IPO Underpricing, 65 J. Fin. Econ. 309– Some academic research has also found that patents 2379–2403 (2002). Another article shows that 35 (2002) (finding that firms with higher litigation have a significant impact on firm-level productivity backlog orders can predict future earnings. See Siva risk underprice their IPOs by a greater amount as and market value. See Nicholas Bloom and John Rajgopal, Terry Shevlin, and Mohan a form of insurance, and underpricing by a greater Van Reenen, Patents, Real Options and Firm Venkatachalam, Does the Market Fully Appreciate amount lowers expected litigation costs). Performance, 112 Econ. J. C97–C116 (2002), and Zvi the Implications of Leading Indicators for Future 308 See Douglas J. Skinner, Why Firms Voluntarily Griliches, Market Value, R&D and Patents, 7 Econ. Earnings? Evidence from Order Backlog, 8 Rev. Disclose Bad News?, 32 J. Acct. Res. 38–60 (1994) Letters 183–87 (1981). Acct. Stud. 461–492 (2003). Based on these studies, Continued

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Therefore, investors might benefit if the investors include environmental criteria also is evidence suggesting that proposal to update Item 103 results in in their investment strategies.310 investors benefit from risk-factor more effective disclosure of material Therefore, the disclosure of disclosures that are more specific.312 In legal proceedings information. environmental proceedings at the measuring long-run returns to IPO Currently, Item 103 and U.S. GAAP, appropriate level might benefit investors stocks, some studies conclude that the which requires disclosure of certain loss who have a particular interest in returns are commensurate with the risk contingencies, overlap in the environmental matters. The economic profiles of the individual firms.313 requirement to disclose certain effects of increasing the disclosure Together, this research supports the information associated with legal threshold depend on investor notion that effective disclosures of risk proceedings. As a result, in order to preferences. In other words, if investors factors can help investors better manage comply with Item 103, registrants do not use information about their risk exposure. commonly repeat disclosures that are environmental proceedings that result We propose to amend Item 105 to already provided elsewhere in in sanctions smaller than $300,000 to require summary risk factor disclosure registration statements and periodic inform investment decisions, the in the forepart of the document when reports. We propose to revise Item 103 proposal may benefit investors since the risk factor section exceeds 15 pages. to encourage the use of hyperlinks or elimination of disclosure that investors If lengthy risk factor disclosure contains cross-references to avoid repetitive do not use may facilitate more efficient information that is less meaningful to disclosure. If duplicative disclosure information processing. If investors use investors, such as generic risks that distracts investors from other important such information, however, the proposal could apply to any investment in information, the proposal may benefit may have a cost to them. Since the securities, a summary of risk factors investors by reducing repetition and proposed threshold is higher than the should benefit investors, especially facilitating more efficient information current threshold, registrants should those who have less time to review and processing. However, to the extent that benefit from reduced compliance costs. analyze registrants’ disclosure, by some information on legal proceedings enabling them to make more efficient iv. Risk Factors (Item 105) would no longer be readily available investment decisions. The proposed under Item 103, investors may have to Item 105 requires disclosure of the threshold could also incentivize spend more time to retrieve the most significant factors that make an registrants to limit the length of their information through hyperlinks or investment in the registrant or offering risk factor disclosure to 15 pages. Based cross-references. However, we believe speculative or risky. Some academic on current disclosure practices, we the increase in retrieval cost for research supports the notion that estimate that a 15-page threshold would investors would be minimal. While information currently required under affect approximately 40 percent of 314 registrants may incur minimal Item 105 is important to investors. For registrants. In order to comply with compliance costs if they choose to example, there is evidence that risk include hyperlinks, we believe factor disclosure by publicly traded disclosures in corporate filings, 19 Rev. Acct. Stud. 311 396–455 (2014) (finding that the required registrants would benefit from the firms is material in content. There disclosures of risk factors in Form 10–K filings proposal due to the potential reduction affect market beta, stock return volatility, in costs to disclose duplicative Acct. Org. & Soc’y 265–82 (1998) (using a matched- information asymmetry, and firm value, and that pair sample of publicly traded Canadian companies firms that face more risks disclose correspondingly information. that have been subject to environmental fines and more in the risk factor discussion). Currently, Item 103 specifically those that have not to analyze changes in pre-fine 312 See Ole Kristian Hope, Danqi Hu and Hai Lu, requires disclosure of any proceedings and post-fine environmental disclosure quality, and The Benefits of Specific Risk-Factor Disclosures, 21 under environmental laws to which a finding that environmental disclosure provides Rev. Acct. Stud. 1005–45 (2016) (finding that the organizations with a method of managing potential market reaction to a Form 10–K filing is positively governmental authority is a party unless discrediting events). See also Xin Chang, Kangkang and significantly associated with specificity and the registrant reasonably believes that Fu, Tao Li, Lewis Tam, and George Wong, suggesting that analysts are better able to assess the proceeding will result in monetary Corporate Environmental Liabilities and Capital fundamental risk when firms’ risk-factor disclosures sanctions, exclusive of interest and Structure (2018), available at https://ssrn.com/ are more specific). costs, of less than $100,000. This bright- abstract=3200991 (documenting that firms with 313 See Bj

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the proposed amendments, registrants requirement and investors valued the D. Alternatives may incur additional costs to additional information, investors would We are proposing to revise Items summarize or shorten their risk factor incur costs associated with the loss of 101(a), 101(c), and 105 to be more disclosure. If registrants shorten their some information. principles-based. As an alternative to risk factor disclosure to avoid triggering C. Anticipated Effects on Efficiency, this proposal, we considered modifying the summary disclosure requirement, these requirements using prescriptive Competition, and Capital Formation the disclosure might become less standards. A prescriptive standard detailed. However, registrants that are As discussed above, the proposed could preserve the information investors providing lengthy risk factor disclosure amendments may improve capital currently receive while eliciting to reduce potential litigation risks might additional specific disclosures, may be be less likely to shorten the disclosure allocation efficiency by enabling investors to make more efficient easier to apply, and could enhance the simply to avoid this requirement. comparability and verifiability of We propose to update Item 105 to investment decisions. For example, the information. For example, in response replace the requirement to discuss the proposed amendments may reduce to previous requests for comment, ‘‘most significant’’ risks with ‘‘material’’ search costs for certain investors by commenters advocated for additional risks. The economic effects of the eliminating information that is not specific disclosures about proposal depend on the preferences of material to those investors. Given that environmental and foreign regulatory investors. If the existing ‘‘most certain investors may have less time to risks, the number and types of significant’’ standard elicits too much or review and analyze registrants’ employees, and business strategy. too little information, investors may 316 disclosure, elimination of such However, not all of these disclosures benefit from the proposed materiality information may facilitate more efficient standard. Focusing on the risks to which will be relevant at the same level of investment decision making. In detail for all registrants. Given that the investors would attach the most addition, permitting issuers to omit importance should enable them to make optimal levels of disclosure for business disclosure of information when it is not description and risk factors, in more efficient investment decisions. material may reduce issuer compliance Registrants may experience increased particular, are likely to vary greatly costs, allowing issuers to deploy (decreased) compliance costs if the across registrants, a more flexible resources towards more productive uses materiality standard results in more principles-based approach should be (less) expansive disclosure than the and thus encouraging capital formation. more likely to elicit the appropriate existing ‘‘most significant’’ standard. The reduction in compliance costs disclosures for these items. In addition, We propose to update Item 105 to might be particularly beneficial for a prescriptive approach to a particular require registrants to organize their risk smaller and younger issuers that are area of disclosure where the specified factor disclosure under relevant resource-constrained.317 metric does not capture or does not fully headings, with generic risk factors, if However, in cases in which issuers capture the information likely to be material to an investment decision for a disclosed, at the end of the section misjudge what information is material, particular issuer or for comparable captioned as ‘‘General Risk Factors.’’ a principles-based disclosure framework issuers may lead investors to rely on Some academic research has found that relying on issuers’ determinations could different types of registrants disclose that metric for the issuer or as a result in increased information comparative tool with respect to other different types of risk factors and certain asymmetries between issuers and types of risk factors are more correlated issuers. investors. Such asymmetries may with stock return volatilities and We also are proposing to adjust for increase the cost of capital, reduce systematic risks.315 Therefore, well- inflation the bright-line threshold for organized risk factor disclosure that capital formation, and hamper efficient environmental proceedings in Item 103 gives greater prominence to the most allocation of capital across companies. from $100,000 to $300,000. As an significant risks could benefit investors, Overall, to the extent that the proposed alternative to this proposal, we especially those who have less time to amendments would eliminate considered applying a materiality review and analyze registrants’ disclosure that is not considered to be standard. On the one hand, a materiality disclosure, by enabling them to make material, we believe these effects would standard might elicit disclosure that is more efficient investment decisions. be limited. Moreover, we would expect more relevant to a registrant’s Registrants may incur additional costs this risk to be offset by mitigants operations. For example, the same to organize their risk factor disclosure. including accounting controls and the dollar amount of environmental fines Overall, the proposed amendments to antifraud provisions of the securities might have a significant impact on cash Item 105 may benefit investors if they laws. flows of a small registrant but a trivial result in disclosure that is more likely impact on cash flows of a large to be material and concise. Registrants 316 See David Hirshleifer and Siew Hong Teoh, registrant. On the other hand, the bright- may incur additional costs to organize Limited attention, information disclosure, and line threshold is easier to apply and and summarize their risk factor financial reporting, 36 J. Acct. & Econ. 337–86 could enhance comparability across disclosure. To the extent that registrants (2003) (developinging a theoretical model where registrants and over time. Given that investors have limited attention and processing shorten their risk factor disclosure to power and showing that, with partially attentive some environmental proceedings can be avoid triggering the summary disclosure investors, the means of presenting information may factually and legally complex, a bright- have an impact on stock price reactions, line threshold provides an easy-to-apply 315 See Ryan D. Israelsen, Tell It Like It Is: misvaluation, long-run abnormal returns, and benchmark for registrants when corporate decisions). Disclosed Risks and Factor Portfolios (2014), determining whether a particular available at https://papers.ssrn.com/sol3/ 317 We note, however, that, except for the papers.cfm?abstract_id=2504522 (using textual elimination of the provision that requires smaller environmental proceeding should be analysis techniques to extract a broad set of reporting companies to describe the development of disclosed. Another alternative is to disclosed risk factors from firms’ SEC filings to their business during the last three years, smaller adopt a lower or higher bright-line examines characteristics of the firms most likely to reporting companies that elect to provide the threshold than the one proposed. The make each type of disclosure, and investigating the alternative business disclosure under Item 101(h) relation between firms’ risk disclosures and their will continue to have mostly prescriptive optimal threshold depends on the stock return volatilities and factor loadings). requirements under the proposed amendments. preference of investors. For example, a

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lower bright-line threshold might be their business disclosure to fit their conduct or sponsor, and a person is not more appropriate if investors use particular circumstances, which could required to comply with, a collection of information about environmental help to eliminate information that is not information unless it displays a proceedings smaller than $300,000 to material. Smaller reporting companies currently valid OMB control number. inform investment decisions. with less established reporting histories, Compliance with the information As another alternative, we considered however, may be the most at risk of collections is mandatory. Responses to revising Form 20–F so that certain of the persistent information asymmetries if the information collections are not kept proposed amendments would also apply the principles-based approach results in confidential and there is no mandatory to foreign private issuers.318 For loss of information material to investors. retention period for the information example, we considered making the As noted above, this risk would be offset disclosed. The titles for the collections business disclosure requirements under by mitigants including accounting of information are: Form 20–F, which are largely controls and antifraud provisions of the ‘‘Regulation S–K’’ (OMB Control No. prescriptive, more principles based as securities laws. 3235–0071); 323 we have proposed to do for domestic ‘‘Form S–1’’ (OMB Control No. 3235– E. Request for Comments registrants. One advantage to similarly 0065); amending the business disclosure In addition to the request for ‘‘Form S–3’’ (OMB Control No. 3235– requirements under Form 20–F is that it comments in Sections II and III of this 0073); would enable foreign registrants to release, we request comment on various ‘‘Form S–4’’ (OMB Control No. 3235– realize the same expected benefits as aspects of the costs and benefits of our 0324); ‘‘Form S–11’’ (OMB Control No. domestic registrants by permitting them proposed amendments. We request comment from the point of view of 3235–0067); to tailor their disclosure to fit their own ‘‘Form F–1’’ (OMB Control No. 3235– investors, registrants, and other market particular circumstances and reduce the 0258); amount of disclosure that is not participants. We are interested in ‘‘Form F–3’’ (OMB Control No. 3235– material. However, this could reduce comments on the analyses and 0256); the ability of foreign private issuers to conclusions of this Section and any ‘‘Form F–4’’ (OMB Control No. 3235– use a single disclosure document that effect the proposed amendments may 0325); would be accepted in multiple have on efficiency, competition, and ‘‘Form SF–1’’ (OMB Control No. jurisdictions.319 capital formation. We also request 3235–0707); More particularly, similar to our rule comments on alternatives presented in ‘‘Form SF–3’’ (OMB Control No. proposal for registrants filing on this release as well as any additional 3235–0690); domestic forms, we considered alternatives to the proposed ‘‘Form 10’’ (OMB Control No. 3235– amending Form 20–F to include as a amendments that should be considered. 0064); business disclosure topic human capital We appreciate any data or analysis that ‘‘Form 10–K’’ (OMB Control No. resources, including any human capital may help quantify the potential costs 3235–0063); measures or objectives that management and benefits identified. In particular, we ‘‘Form 10–Q’’ (OMB Control No. focuses on in managing the business, to appreciate any data or analyses that 3235–0070); the extent material to an understanding would help understand the effects of ‘‘Schedule 14A’’ (OMB Control No. of the registrant’s business. Such an using a higher or lower quantitative 3235–0059). amendment could impose additional threshold for environmental We adopted all of the existing costs in the short run for foreign private proceedings. In addition, if the regulations, schedules, and forms issuers, to the extent that this disclosure proposed materiality standards in this pursuant to the Securities Act and the is not required in other jurisdictions. At release diminish comparability among Exchange Act. The regulations, the same time, investors could benefit registrants, we appreciate any data or schedules, and forms set forth the from any additional information elicited analyses on the costs associated with disclosure requirements for registration by the human capital topic. the loss of such comparability. statements, periodic reports, and proxy We also considered amending Item and information statements filed by V. Paperwork Reduction Act 101(h), which permits a smaller registrants to help investors make reporting company to provide the A. Summary of the Collections of informed investment and voting disclosure about its business Information decisions. A description of the proposed development and description of its amendments, including the need for the Certain provisions of our rules, information and its proposed use, as business pursuant to that Item as an schedules, and forms that would be alternative to Items 101(a) and (c).320 well as a description of the likely affected by the proposed amendments respondents, can be found in Section II We considered amending the disclosure contain ‘‘collection of information’’ requirements of Item 101(h), which are above, and a discussion of the economic requirements within the meaning of the effects of the proposed amendments can largely prescriptive, to make them more Paperwork Reduction Act of 1995 principles-based, similar to the be found in Section IV above. (‘‘PRA’’).321 The Commission is approach proposed for Items 101(a) and submitting the proposed amendments to B. Summary of the Proposed (c). Such an amendment would enable the Office of Management and Budget Amendments’ Effects on the Collections smaller reporting companies to tailor (‘‘OMB’’) for review in accordance with of Information the PRA.322 The hours and costs 318 As previously explained, business disclosure The following table summarizes the for foreign private issuer registrants is governed by associated with preparing, filing, and estimated effects of the proposed Part I of Form 20–F, and not by Item 101 of sending the schedules and forms Regulation S–K. See supra note 23. The constitute reporting and cost burdens 323 The paperwork burden for Regulation S–K is Commission amended Form 20–F in 1999 to imposed by each collection of imposed through the forms that are subject to the conform in large part to the non-financial disclosure information. An agency may not requirements in this regulation and is reflected in standards endorsed by IOSCO. See supra note 190 the analysis of those forms. To avoid a PRA and accompanying text. inventory reflecting duplicative burdens and for 319 See supra note 191 and accompanying text. 321 44 U.S.C. 3501 et seq. administrative convenience, we assign a one-hour 320 See supra note 80. 322 44 U.S.C. 3507(d) and 5 CFR 1320.11. burden to Regulation S–K.

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amendments on the paperwork burdens associated with the affected forms listed in Section V.A.

PRA TABLE 1—ESTIMATED PAPERWORK BURDEN EFFECTS OF THE PROPOSED AMENDMENTS

Proposed amendments and effects Affected forms Estimated net effect *

Item 101(a): • More principles-based disclosure requirement, elimination of timeframe, and, for reg- • Forms S–1, S–4, 10, • 2 hour net decrease istration statements subsequent to the initial registration statement, requiring only an 10–K. in compliance bur- update with a hyperlink to the most recently filed disclosure that, together with the up- • Schedule 14A ...... den per form. date, would present a complete discussion of the general development of a registrant’s • 0.2 hour net de- business, would decrease the paperwork burden by reducing repetitive and immaterial crease in compli- information about a registrant’s business development. Estimated burden decrease: 3 ance burden per hours per form; and, for Schedule 14A, 0.3 hour per schedule**. schedule. • Addition of material changes to business strategy as a potential disclosure topic could increase the paperwork burden for some registrants, although such increase is ex- pected to be minimal as many registrants already provide such disclosure. Estimated burden increase: 1 hour per form; and, for Schedule 14A, 0.1 hour per schedule**. Item 101(c): • More principles-based disclosure requirement is expected to decrease the paperwork • Forms S–1, S–4, 10, • 3 hour net increase burden. Estimated burden decrease: 3 hours per form; and, for Schedule 14A, 0.3 hour 10–K. in compliance bur- per schedule**. • Schedule 14A ...... den per form. • Addition of human capital resources/measures and objectives as potential disclosure • 0.3 hour net in- topic would likely increase the paperwork burden. Estimated burden increase: 5 hours crease in compli- per form; and, for Schedule 14A, 0.5 hour per schedule**. ance burden per • Addition of material government (and not just environmental) regulations as a potential schedule. disclosure topic could increase the paperwork burden for some registrants, although such increase is expected to be minimal as many registrants already provide such dis- closure. Estimated burden increase: 1 hour per form; and, for Schedule 14A, 0.1 hour per schedule**. Item 103: • Expressly providing for the use of hyperlinks or cross-references is expected to de- Forms S–1, S–4, S– 3 hour net decrease in crease the paperwork burden by discouraging repetitive disclosure. Estimated burden 11, 10, 10–K, 10–Q, compliance burden decrease: 1 hour per form/schedule. Schedule 14A. per form/schedule. • Raising the disclosure threshold for governmental environmental proceedings could also decrease the paperwork burden by reducing disclosure of immaterial proceedings. Estimated burden decrease: 2 hours per form/schedule. Item 105: • Summary risk factor disclosure provision could increase the paperwork burden for • Forms S–1, S–3, S– • 3 hour net decrease some registrants, although such increase is expected to be minimal as the summary 4, F–1, F–3, F–4, in compliance bur- would consist of a bulleted list. Estimated burden increase: 1 hour per form, except no SF–1, SF–3. den per form. increase for Form S–11,*** and 0.67 hour increase per form for Forms 10, 10–K, and • Form S–11 ...... • no change in compli- 10–Q ±. • Forms 10, 10–K, ance burden. • Summary risk factor disclosure provision could decrease the paperwork burden for 10–Q. • 2 hour net decrease other registrants to extent that it incentivizes registrants to provide streamlined risk fac- in compliance bur- tor disclosure focusing on the most salient risks. Estimated burden decrease: 4 hours den per form. per form, except no decrease for Form S–11,*** and 2.67 hour decrease per form for Forms 10, 10–K, and 10–Q ±. • ‘‘General Risk Factors’’ heading provision could marginally increase the paperwork bur- den. Estimated burden increase: 0.5 hour per form, except 0.33 hour increase per form for Forms 10, 10–K, and 10–Q ±. • Substitution of ‘‘material’’ risks for ‘‘most significant’’ risks could marginally decrease the paperwork burden. Estimated burden decrease: 0.5 hours per form, except 0.33 hour decrease per form for Forms 10, 10–K, and 10–Q ±.

Total ...... • Forms S–1, S–4 ...... • 5 hour net decrease • Forms S–3, S–11, per form. F–1, F–3, F–4, SF– • 3 hour net decrease 1, SF–3. per form. • Form 10, 10–K ...... • 4 hour net decrease • 10–Q ...... per form. • Schedule 14A ...... • 5 hour net decrease per form. • 2.9 hour net de- crease per schedule. * Estimated effect expressed as increase or decrease of burden hours on average and derived from staff review of samples of relevant sec- tions of the affected forms. ** The lower estimated average incremental burden for Schedule 14A reflects the Commission staff estimate that no more than 10% of the Schedule 14As filed annually include Item 101 disclosures. *** Because Form S–11 already has a summary risk factor disclosure requirement, the proposed Item 105 amendment is not expected to affect the compliance burden for Form S–11 registrants. ± The reduced estimated average incremental burden for Forms 10, 10–K and 10–Q reflects the fact that smaller reporting companies, which comprise approximately one-third of the registrants filing those forms, are not required to provide Item 105 risk factor disclosure.

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C. Incremental and Aggregate Burden registrants based on a number of factors, average amount of time it would take a and Cost Estimates for the Proposed including the nature of their business. registrant to prepare and review Amendments We do not believe that the proposed disclosure required under the proposed amendments would change the amendments. For purposes of the PRA, Below we estimate the incremental frequency of responses to the existing the burden is to be allocated between and aggregate reductions in paperwork collections of information; rather, we internal burden hours and outside burden as a result of the proposed estimate that the proposed amendments professional costs. The table below sets amendments. These estimates represent would change only the burden per forth the percentage estimates we the average burden for all registrants, response. typically use for the burden allocation both large and small. In deriving our The burden reduction estimates were for each form. We also estimate that the estimates, we recognize that the burdens calculated by multiplying the estimated average cost of retaining outside will likely vary among individual number of responses by the estimated professionals is $400 per hour.324

PRA TABLE 2—STANDARD ESTIMATED BURDEN ALLOCATION FOR SPECIFIED FORMS AND SCHEDULES

Outside Form/schedule type Internal professionals (percent) (percent)

Forms 10–K, 10–Q, Schedule 14A ...... 75 25 Forms S–1, S–3, S–4, S–11, F–1, F–3, F–4, SF–1, SF–3, and 10 ...... 25 75

The table below illustrates the hours and in costs, as a result of the incremental change to the total annual proposed amendments. compliance burden of affected forms, in PRA TABLE 3—CALCULATION OF THE INCREMENTAL CHANGE IN BURDEN ESTIMATES OF CURRENT RESPONSES RESULTING FROM THE PROPOSED AMENDMENTS

Burden hour Reduction in Reduction in Reduction in Number of reduction Reduction in burden company hours professional professional Form estimated per current hours for current for current hours for costs for affected responses affected affected responses affected current affected current affected response responses responses responses

(A) 325 (B) (C) = (A) × (B) 326 (D) = (C) × 0.25 or 0.75 (E) = (C) × 0.75 or 0.25 (F) = (E) × $400

S–1 ...... 901 5 4,505 1,126 3,379 $1,351,600 S–3 ...... 1,657 3 4,971 1,243 3,729 1,491,600 S–4 ...... 551 5 2,755 689 2,066 826,400 S–11 ...... 64 3 192 48 144 57,600 F–1 ...... 63 3 189 47 142 56,800 F–3 ...... 112 3 336 84 252 100,800 F–4 ...... 39 3 117 29 88 35,200 SF–1 ...... 6 3 18 5 14 5,600 SF–3 ...... 71 3 213 53 160 64,000 10 ...... 216 4 864 216 648 259,200 10–K ...... 8,137 4 32,548 24,411 8,137 3,254,800 10–Q ...... 22,907 5 114,535 85,901 28,634 11,453,600 Sch. 14A .... 5,586 2.9 16,199 12,149 4,050 1,620,000

Total .... 40,310 ...... 126,001 ...... 20,577,200

The following table summarizes the and costs, under the proposed requested paperwork burden, including amendments. the estimated total reporting burdens PRA TABLE 4—REQUESTED PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS

Current burden Program change Requested change in burden Form Number of Current annual Current burden Current cost affected Reduction in Reduction in Annual Burden hours Cost burden responses hours burden responses company hours professional costs responses

(A) (B) (C) (D) (E) 327 (F) 328 (G) = (A) (H) = (B) + (E) (I) = (C) + (F)

S–1 ...... 901 148,556 $182,048,700 901 1,126 $1,351,600 901 147,430 $180,697,100 S–3 ...... 1,657 193,730 236,322,036 1,657 1,243 1,491,600 1,657 192,487 234,830,436 S–4 ...... 551 565,079 678,291,204 551 689 826,400 551 564,390 677,464,804

324 We recognize that the costs of retaining registrants in preparing and filing reports with the amendments will materially change the number of outside professionals may vary depending on the Commission. responses in the current OMB PRA filing inventory. nature of the professional services, but for purposes 325 The number of estimated affected responses is 326 The estimated reductions in Columns (C), (D) of this PRA analysis, we estimate that such costs based on the number of responses in the and (E) are rounded to the nearest whole number. would be an average of $400 per hour. This estimate Commission’s current OMB PRA filing inventory. 327 is based on consultations with several registrants, The OMB PRA filing inventory represents a three- From Column (D) in PRA Table 3. law firms, and other persons who regularly assist year average. We do not expect that the proposed 328 From Column (F) in PRA Table 3.

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PRA TABLE 4—REQUESTED PAPERWORK BURDEN UNDER THE PROPOSED AMENDMENTS—Continued

Current burden Program change Requested change in burden Form Number of Current annual Current burden Current cost affected Reduction in Reduction in Annual Burden hours Cost burden responses hours burden responses company hours professional costs responses

(A) (B) (C) (D) (E) 327 (F) 328 (G) = (A) (H) = (B) + (E) (I) = (C) + (F)

S–11 ...... 64 12,290 15,016,968 64 48 57,600 64 12,242 14,959,368 F–1 ...... 63 26,815 32,445,300 63 47 56,800 63 26,768 32,388,500 F–3 ...... 112 4,448 5,712,000 112 84 100,800 112 4,364 5,611,200 F–4 ...... 39 14,265 17,106,000 39 29 35,200 39 14,236 17,070,800 SF–1 ...... 6 2,076 2,491,200 6 5 5,600 6 2,071 2,485,600 SF–3 ...... 71 24,548 29,457,900 71 53 64,000 71 24,495 29,393,900 10 ...... 216 12,072 14,356,888 216 216 259,200 216 12,018 14,032,888 10–K ...... 8,137 14,220,652 1,898,891,869 8,137 24,411 3,254,800 8,137 14,190,138 1,894,823,469 10–Q ...... 22,907 3,253,411 432,290,354 22,907 85,901 11,453,600 22,907 3,167,510 420,836,754 Sch. 14A...... 5,586 551,101 73,480,012 5,586 12,149 1,620,000 5,586 538,952 72,362,812

Total ...... 40,310 15,775,632 3,617,910,431 40,310 126,001 20,577,200 40,310 18,897,101 3,596,957,631

Request for Comment Washington, DC 20549–2736. OMB is of these effects, we expect that the Pursuant to 44 U.S.C. 3506(c)(2)(B), required to make a decision concerning impact of the rule proposal would be a we request comment in order to: the collection of information between 30 reduction in the paperwork burden of • Evaluate whether the proposed and 60 days after publication of this affected entities, including small collections of information are necessary proposed rule. Consequently, a entities, and that the overall impact of for the proper performance of the comment to OMB is best assured of the paperwork burden reduction would functions of the Commission, including having its full effect if the OMB receives be modest and would be beneficial to whether the information will have it within 30 days of publication. small entities.334 Accordingly, the practical utility; VI. Regulatory Flexibility Act Commission hereby certifies, pursuant • Evaluate the accuracy and Certification to 5 U.S.C. 605(b), that the proposed assumptions and estimates of the amendments to Items 101, 103, and 105 burden of the proposed collection of When an agency issues a rulemaking of Regulation S–K, if adopted, would information; proposal, the Regulatory Flexibility Act not have a significant economic impact 329 • Determine whether there are ways (‘‘RFA’’) requires the agency to on a substantial number of small entities to enhance the quality, utility, and prepare and make available for public for purposes of the RFA. clarity of the information to be comment an Initial Regulatory collected; Flexibility Analysis (‘‘IRFA’’) that will Request for Comment • Evaluate whether there are ways to describe the impact of the proposed rule on small entities.330 Section 605 of the We request comment on this minimize the burden of the collection of certification. In particular, we solicit information on those who respond, RFA allows an agency to certify a rule, in lieu of preparing an IRFA, if the comment on the following: Do including through the use of automated commenters agree with the certification? collection techniques or other forms of proposed rulemaking is not expected to have a significant economic impact on If not, please describe the nature of any information technology; and impact of the proposed amendments on • Evaluate whether the proposed a substantial number of small small entities and provide empirical amendments would have any effects on entities.331 data to illustrate the extent of the any other collection of information not Although the rule proposal would impact. Such comments will be previously identified in this section. have an impact on a substantial number Any member of the public may direct of small entities,332 the Commission considered in the preparation of the to us any comments concerning the expects that the impact on entities final rules (and in a Final Regulatory accuracy of these burden estimates and affected by the proposed rule would not Flexibility Analysis if one is needed) any suggestions for reducing these be significant.333 The primary effects of and, if the proposed rules are adopted, burdens. Persons submitting comments the rule proposal would be to: (1) will be placed in the same public file as on the collection of information Increase the flexibility for an entity comments on the proposed rules requirements should direct their when providing disclosure regarding its themselves. comments to the Office of Management business, including its general business VII. Small Business Regulatory and Budget, Attention: Desk Officer for development, so that it can tailor its Enforcement Fairness Act the U.S. Securities and Exchange disclosure to its particular Commission, Office of Information and circumstances; (2) eliminate or reduce For purposes of the Small Business Regulatory Affairs, Washington, DC disclosure about matters that are not Regulatory Enforcement Fairness Act of 20503, and send a copy to, Vanessa A. material to an understanding of the 1996 (SBREFA),335 the Commission Countryman, Secretary, U.S. Securities business or to an entity’s legal must advise OMB as to whether the and Exchange Commission, 100 F Street proceedings; and (3) encourage risk proposed amendments constitute a NE, Washington, DC 20549–1090, with factor disclosure that is shorter and ‘‘major’’ rule. Under SBREFA, a rule is reference to File No. S7–11–19. concerns only material risks. As a result considered ‘‘major’’ where, if adopted, it Requests for materials submitted to results or is likely to result in: OMB by the Commission with regard to 329 5 U.S.C. 601 et seq. the collection of information should be 330 5 U.S.C. 603(a). 334 We estimate that the proposed amendments 331 in writing, refer to File No. S7–11–19 5 U.S.C. 605(b). are likely to result in a net decrease of between 332 Approximately 2,283, or 33%, of the three and five burden hours per form for purposes and be submitted to the U.S. Securities registrants filing on domestic forms in 2018 were of the Paperwork Reduction Act. See supra Section and Exchange Commission, Office of small entities. See supra Section IV.A. V.B. FOIA Services, 100 F Street NE, 333 See Section IV.B. 335 5 U.S.C. 801 et seq.

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• An annual effect on the U.S. ■ d. Revising paragraphs (c) and (h) product families or customers, economy of $100 million or more (either introductory text. including governmental customers; in the form of an increase or a decrease); The revisions and addition read as (ii) Status of development efforts for • A major increase in costs or prices follows: new or enhanced products, trends in for consumers or individual industries; market demand and competitive § 229.101 (Item 101) Description of or business. conditions; • Significant adverse effects on (iii) Resources material to a (a) General development of business. competition, investment, or innovation. registrant’s business, such as: Describe the general development of the We request comment on whether the (A) Sources and availability of raw business of the registrant, its proposed amendments would be a materials; and subsidiaries, and any predecessor(s). ‘‘major rule’’ for purposes of SBREFA. (B) The duration and effect of all (1) In describing developments, only In particular, we request comment on patents, trademarks, licenses, franchises information material to an the potential effect of the proposed and concessions held; understanding of the general amendments on the U.S. economy on an (iv) A description of any material development of the business is required. annual basis; any potential increase in portion of the business that may be Disclosure may include, but should not costs or prices for consumers or subject to renegotiation of profits or be limited to, the following topics: individual industries; and any potential (i) Transactions and events that affect termination of contracts or subcontracts effect on competition, investment or or may affect the company’s operations, at the election of the Government; and innovation. Commenters are requested including material changes to a (v) The extent to which the business to provide empirical data and other previously disclosed business strategy; is or may be seasonal. factual support for their views to the (ii) Bankruptcy, receivership, or any (2) Discuss the information specified extent possible. similar proceeding; in paragraphs (c)(2)(i) and (ii) of this section with respect to, and to the extent VIII. Statutory Authority and Text of (iii) The nature and effects of any material to an understanding of, the Proposed Rule and Form Amendments material reclassification, merger or consolidation of the registrant or any of registrant’s business taken as a whole, The amendments contained in this its significant subsidiaries; and except that, if the information is release are being proposed under the (iv) The acquisition or disposition of material to a particular segment, you authority set forth in Sections 7, 10, and any material amount of assets otherwise should additionally identify that 19(a) of the Securities Act, as amended, than in the ordinary course of business. segment. and Sections 3, 12, 13, 15, and 23(a) of (2) For filings other than initial (i) The material effects that the Exchange Act, as amended. registration statements, a full discussion compliance with material government List of Subjects in 17 CFR Parts 229, of the general development of the regulations, including environmental 239, and 240 registrant’s business is not required. For regulations, may have upon the capital such filings, an update to the general expenditures, earnings and competitive Reporting and recordkeeping development of the business disclosure position of the registrant and its requirements, Securities. with a focus on material developments subsidiaries. Include in such disclosure Text of the Proposed Amendments in the reporting period may be provided material estimated capital expenditures instead of a full discussion. If a full for environmental control facilities for In accordance with the foregoing, the discussion of the general development the current fiscal year and any other Commission is proposing to amend title of the registrant’s business is not subsequent period that the registrant 17, chapter II of the Code of Federal included, pursuant to § 230.411 or deems material; and Regulations as follows: § 240.12b–23 of this chapter as (ii) A description of the registrant’s human capital resources, including in PART 229—STANDARD applicable, incorporate by reference, such description any human capital INSTRUCTIONS FOR FILING FORMS and include an active hyperlink to, the measures or objectives that management UNDER SECURITIES ACT OF 1933, registrant’s most recently filed focuses on in managing the business SECURITIES EXCHANGE ACT OF 1934 disclosure that, together with the (such as, depending on the nature of the AND ENERGY POLICY AND update, would present the full registrant’s business and workforce, CONSERVATION ACT OF 1975— discussion of the general development measures or objectives that address the REGULATION S–K of its business. * * * * * attraction, development, and retention ■ 1. The authority citation for part 229 (c) Description of business. (1) of personnel). continues to read as follows: Describe the business done and * * * * * (h) Smaller reporting companies. A Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, intended to be done by the registrant 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), and its subsidiaries, focusing upon the smaller reporting company, as defined 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, registrant’s dominant segment or each by § 229.10(f)(1), may satisfy its 77nnn, 77sss, 78c, 78i, 78j, 78j–3, 78l, 78m, reportable segment about which obligations under this Item by 78n, 78n–1, 78o, 78u–5, 78w, 78ll, 78mm, financial information is presented in the describing the development of its 80a–8, 80a–9, 80a–20, 80a–29, 80a–30, 80a– financial statements. When describing business pursuant to this paragraph (h), 31(c), 80a–37, 80a–38(a), 80a–39, 80b–11 and each segment, include the information except that, for filings other than initial 7201 et seq.; 18 U.S.C. 1350; Sec. 953(b) Pub. specified in paragraphs (c)(1)(i) through registration statements, a smaller L. 111–203, 124 Stat. 1904 (2010); and sec. (v) of this section, to the extent such reporting company may provide an 102(c), Pub. L. 112–106, 126 Stat. 310 (2012). information is material to an update to the general development of ■ 2. Amend § 229.101 by: understanding of the business taken as the business disclosure, instead of a full ■ a. Revising paragraphs (a) a whole. discussion, which complies with introductory text and (a)(1); (i) Revenue-generating activities, paragraph (a)(2) of this section. If the ■ b. Redesignating paragraph (a)(2) as products and/or services, and any smaller reporting company has not been paragraph (a)(3); dependence on revenue-generating in business for three years, give the ■ c. Adding new paragraph (a)(2); and activities, key products, services, same information for predecessor(s) of

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the smaller reporting company if there (3) Administrative or judicial summary section, the risk factor section are any. This business development proceedings (including proceedings must immediately follow the cover page description should include: which present in large degree the same of the prospectus or the pricing * * * * * issues) arising under any Federal, State, information section that immediately ■ 3. Revise § 229.103 to read as follows: or local provisions that have been follows the cover page. Pricing enacted or adopted regulating the information means price and price- § 229.103 (Item 103) Legal proceedings. discharge of materials into the related information that you may omit (a) Describe briefly any material environment or primarily for the from the prospectus in an effective pending legal proceedings, other than purpose of protecting the environment. registration statement based on Rule ordinary routine litigation incidental to Such proceedings shall not be deemed 430A (§ 230.430A of this chapter). The the business, to which the registrant or ‘‘ordinary routine litigation incidental to registrant must furnish this information any of its subsidiaries is a party or of the business’’ and shall be described if: in plain English. See § 230.421(d) of which any of their property is the (i) Such proceeding is material to the Regulation C of this chapter. subject. Include the name of the court or business or financial condition of the agency in which the proceedings are registrant; PART 239—FORMS PRESCRIBED pending, the date instituted, the (ii) Such proceeding involves UNDER THE SECURITIES ACT OF 1933 principal parties thereto, a description primarily a claim for damages, or ■ of the factual basis alleged to underlie involves potential monetary sanctions, 5. The authority citation for part 239 the proceedings and the relief sought. capital expenditures, deferred charges continues to read as follows: Include similar information as to any or charges to income and the amount Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, such proceedings known to be involved, exclusive of interest and costs, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, contemplated by governmental exceeds 10 percent of the current assets 78o(d), 78o–7 note, 78u–5, 78w(a), 78ll, authorities. Information may be of the registrant and its subsidiaries on 78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a– provided by hyperlink or cross- a consolidated basis; or 10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, and 80a–37; and sec. 107, Pub. L. 112–106, reference to legal proceedings disclosure (iii) A governmental authority is a 126 Stat. 312, unless otherwise noted. elsewhere in the document, such as in party to such proceeding and such proceeding involves potential monetary * * * * * Management’s Discussion & Analysis ■ (MD&A), Risk Factors and notes to the sanctions, unless the registrant 6. Amend Form S–4 (referenced in financial statements. reasonably believes that such § 239.25) by revising paragraph (b)(3)(i) (b) No information need be given proceeding will result in no monetary of Item 12 under Part I, Section B under this section for proceedings: sanctions, or in monetary sanctions, (‘‘Information About the Registrant’’) to (1) That involve negligence or other exclusive of interest and costs, of less read as follows: claims or actions if the business than $300,000; provided, however, that Note: The text of Form S–4 does not, ordinarily results in such claims or such proceedings which are similar in and this amendment will not, appear in actions, unless the claim or action nature may be grouped and described the Code of Federal Regulations. departs from the normal kind of such generically. United States Securities and Exchange claims or actions; or ■ 4. Revise § 229.105 to read as follows: Commission (2) That involve primarily a claim for damages if the amount involved, § 229.105 (Item 105) Risk factors. Washington, DC 20549 exclusive of interest and costs, does not (a) Where appropriate, provide under Form S–4 exceed 10 percent of the current assets the caption ‘‘Risk Factors’’ a discussion Registration Statement Under the of the registrant and its subsidiaries on of the material factors that make an Securities Act of 1933 a consolidated basis. However, if any investment in the registrant or offering proceeding presents in large degree the speculative or risky. This discussion * * * * * must be organized logically with same legal or factual issues as other Part I proceedings pending or known to be relevant headings and each risk factor contemplated, the amount involved in should be set forth under a subcaption Information Required in the Prospectus such other proceedings shall be that adequately describes the risk. The * * * * * included in computing such percentage. presentation of risks that could apply (c) Notwithstanding paragraph (b) of generically to any registrant or any B. Information About the Registrant this section, disclosure under this offering is discouraged, but to the extent * * * * * section shall include, but shall not be generic risk factors are presented, Item 12. Information with Respect to limited to: disclose them at the end of the risk S–3 Registrants. (1) Any material bankruptcy, factor section under the caption * * * * * receivership, or similar proceeding with ‘‘General Risk Factors.’’ (b) * * * respect to the registrant or any of its (b) Concisely explain how each risk (3) Furnish the information required significant subsidiaries; affects the registrant or the securities by the following: (2) Any material proceedings to which being offered. If the discussion is longer (i) Item 101(c)(1)(i) of Regulation S–K any director, officer or affiliate of the than 15 pages, include in the forefront (§ 229.101(c)(1)(i) of this chapter), registrant, any owner of record or of the prospectus or annual report, as industry segments, key products or beneficially of more than five percent of applicable, a series of short, concise, services; any class of voting securities of the bulleted or numbered statements registrant, or any associate of any such summarizing the principal factors that * * * * * director, officer, affiliate of the make an investment in the registrant or PART 240—GENERAL RULES AND registrant, or security holder is a party offering speculative or risky. If the risk REGULATIONS, SECURITIES adverse to the registrant or any of its factor discussion is included in a EXCHANGE ACT OF 1934 subsidiaries or has a material interest registration statement, it must adverse to the registrant or any of its immediately follow the summary ■ 7. The authority citation for part 240 subsidiaries; section. If you do not include a continues to read as follows:

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Authority: 15 U.S.C. 77c, 77d, 77g, 77j, ■ 8. Amend § 240.14a–101 by revising respect to directors and executive 77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, paragraph (a) of Item 7 of Schedule 14A officers. 77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f, to read as follows: 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, * * * * * 78n, 78n–1, 78o, 78o–4, 78o–10, 78p, 78q, § 240.14a–101 Schedule 14A. Information By the Commission. 78q–1, 78s, 78u–5, 78w, 78x, 78ll, 78mm, required in proxy statement. 80a–20, 80a–23, 80a–29, 80a–37, 80b–3, 80b– Dated: August 8, 2019. 4, 80b–11, 7201 et seq.; and 8302; 7 U.S.C. * * * * * Vanessa A. Countryman, 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 U.S.C. Item 7. Directors and executive Secretary. 1350; and Pub. L. 111–203, 939A, 124 Stat. 1887 (2010); and secs. 503 and 602, Pub. L. officers. *** [FR Doc. 2019–17410 Filed 8–22–19; 8:45 am] 112–106, 126 Stat. 326 (2012), unless (a) The information required by Item BILLING CODE 8011–01–P otherwise noted. 103(c)(2) of Regulation S–K * * * * * (§ 229.103(c)(2) of this chapter) with

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Part III

Department of Homeland Security

8 CFR Parts 212 and 236

Department of Health and Human Services

45 CFR Part 410 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children; Final Rule

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DEPARTMENT OF HOMELAND changes and builds on the government’s A. Section-by-Section Discussion of the SECURITY extensive experience working under the DHS Proposed Rule, Public Comments, FSA. Most prominently, in response to and the Final Rule 8 CFR Parts 212 and 236 great difficulty working under the state- B. Section-by-Section Discussion of the licensing requirement for family HHS Proposed Rule, Public Comments, and the Final Rule DEPARTMENT OF HEALTH AND residential centers, the final rule creates HUMAN SERVICES C. Other Comments Received an alternative to the existing licensed VI. Statutory and Regulatory Requirements program requirement for ICE family A. Executive Orders 12866 and 13563: 45 CFR Part 410 residential centers, so that ICE may use Regulatory Review RIN 1653–AA75, 0970–AC42 appropriate facilities to detain family B. Regulatory Flexibility Act units together during their immigration C. Small Business Regulatory Enforcement Apprehension, Processing, Care, and proceedings, consistent with applicable Fairness Act of 1996 Custody of Alien Minors and law. D. Unfunded Mandates Reform Act of 1995 E. Congressional Review Act Unaccompanied Alien Children DATES: Effective October 22, 2019. F. Paperwork Reduction Act AGENCY: U.S. Immigration and Customs ADDRESSES: Comments and related G. Executive Order 13132: Federalism Enforcement (ICE), U.S. Department of materials received from the public, as H. Executive Order 12988: Civil Justice Homeland Security (DHS); U.S. Customs well as background documents Reform and Border Protection (CBP), DHS; mentioned in this preamble as being I. Executive Order 13211: Actions Office of Refugee Resettlement (ORR), available in the docket, are part of Concerning Regulations That docket DHS Docket No. ICEB–2018– Significantly Affect Energy Supply, Administration for Children and Distribution, or Use Families (ACF), U.S. Department of 0002. For access to the online docket, go to https://www.regulations.gov and J. National Environmental Policy Act Health and Human Services (HHS). (NEPA) ACTION: Final rule. enter this rulemaking’s eDocket number: K. Executive Order 12630: Governmental DHS Docket No. ICEB–2018–0002 in the Actions and Interference With SUMMARY: This final rule amends ‘‘Search’’ box. Constitutionally Protected Property regulations relating to the apprehension, FOR FURTHER INFORMATION CONTACT: Rights processing, care, custody, and release of For DHS: Office of Policy and L. Executive Order 13045: Protection of alien juveniles. The rule replaces Planning, U.S. Immigration and Children From Environmental Health regulations that were promulgated in Customs Enforcement, Department of Risks and Safety Risks 1988 in response to a lawsuit filed in Homeland Security, 500 12th Street SW, M. National Technology Transfer and 1985 against the Attorney General and Washington, DC 20536. Telephone 202– Advancement Act the Department of Justice’s legacy U.S. 732–6960 (not a toll-free number). N. Family Assessment Immigration and Naturalization Service For HHS: Division of Policy, Office of List of Subjects and Regulatory Amendments (INS), in Flores v. Meese. In January the Director, Office of Refugee I. Table of Abbreviations 1997, the parties reached a Resettlement, Administration for ACF—Administration for Children and comprehensive settlement agreement, Children and Families, by email at Families referred to as the Flores Settlement [email protected]. Office of BPA—U.S. Border Patrol Agent Agreement (FSA). The FSA, as modified Refugee Resettlement, 330 C Street SW, CBP—U.S. Customs and Border Protection in 2001, provides that it will terminate Washington, DC 20201. Telephone 202– DHS—U.S. Department of Homeland forty-five days after publication of final 401–9246. Security regulations implementing the SUPPLEMENTARY INFORMATION: DOJ—U.S. Department of Justice agreement. Since 1997, intervening EOIR—Executive Office for Immigration legislation, including the Homeland Table of Contents Review Security Act of 2002 (HSA) and the I. Table of Abbreviations FRC—Family Residential Center William Wilberforce Trafficking Victims II. Executive Summary FSA—Flores Settlement Agreement A. Purpose of the Regulatory Action HHS—U.S. Department of Health and Human Protection Reauthorization Act of 2008 Services (TVPRA), have significantly altered the B. Legal Authority C. Costs and Benefits HSA—Homeland Security Act of 2002 governing legal authorities relating to D. Effective Date ICE—U.S. Immigration and Customs the detention, custody, processing, and III. Background and Purpose Enforcement release of alien juveniles. This final rule A. History IIRIRA—Illegal Immigration Reform and adopts regulations that implement the 1. The Flores Settlement Agreement Immigrant Responsibility Act of 1996 relevant and substantive terms of the 2. The Reorganization of the Immigration INA—Immigration and Nationality Act FSA, consistent with the HSA and the and Naturalization Service INS—Immigration and Naturalization Service TVPRA, with some modifications 3. The Change in Migration and the JFRMU—Juvenile and Family Residential Creation of the Family Residential Management Unit discussed further below to reflect OFO—Office of Field Operations, U.S. intervening statutory and operational Centers B. Authority Customs and Border Protection changes while still providing similar 1. Statutory and Regulatory Authority OMB—Office of Management and Budget substantive protections and standards. 2. Flores Settlement Agreement ORR—Office of Refugee Resettlement, U.S. The final rule satisfies the basic purpose Implementation Department of Health and Human Services of the FSA in ensuring that all alien 3. Recent Court Orders PREA—Prison Rape Elimination Act of 2003 juveniles in the government’s custody C. Basis and Purpose of Regulatory Action TVPRA—William Wilberforce Trafficking pursuant to its authorities under the 1. Need for Regulations Implementing the Victims Protection Reauthorization Act of immigration laws are treated with Relevant and Substantive Terms of the 2008 UAC(s)—Unaccompanied Alien Child(ren) dignity, respect, and special concern for FSA 2. Purpose of the Regulations USCIS—U.S. Citizenship and Immigration their particular vulnerability as minors, D. Severability Services while doing so in a manner that is IV. Summary of Changes in the Final Rule USBP—U.S. Border Patrol, U.S. Customs and workable in light of subsequent V. Discussion of Public Comments and Border Protection statutory, factual, and operational Responses YTD—Year to Date

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II. Executive Summary FSA was not designed to address the internal cross-reference to 8 CFR current-day circumstances presented by 235.3(b). Eliminating that cross- A. Purpose of the Regulatory Action accompanied minors. See Flores, 828 reference is required to clarify that the On September 7, 2018, the F.3d 898, 906 (9th Cir. 2016) (‘‘the provisions in § 235.3(b) governing the Department of Homeland Security parties gave inadequate attention to parole of aliens in expedited removal (DHS) and the Department of Health and some potential problems of proceedings (i.e., those pending a Human Services (HHS), (the accompanied minors’’). The FSA’s credible fear determination or who have ‘‘Departments’’) published a notice of application to accompanied minors has been ordered removed in the expedited proposed rulemaking (NPRM or created a series of operational removal process but still await removal) proposed rule) that would amend difficulties for DHS, most notably with apply to all such aliens, including regulations related to the Apprehension, respect to a state-licensing requirement minors in DHS custody, and not just Processing, Care, and Custody of Alien for an ICE Family Residential Center adults. The current cross-reference to Minors and Unaccompanied Alien (FRC) in which such parents/legal § 235.3(b) within § 212.5(b) is confusing Children. See Apprehension, guardians may be housed together with because it suggests, incorrectly, that the Processing, Care, and Custody of Alien their children during immigration more flexible parole standards in Minors and Unaccompanied Alien proceedings, the need for custody of § 212.5(b) might override the provisions Children; Proposed Rule, 83 FR 45486 parents and accompanied minors as in § 235.3(b) that govern parole when (Sept. 7, 2018). The proposed rule required by the immigration laws in any alien, including a minor, is in provided a 60-day public comment certain circumstances, and avoiding the expedited removal proceedings. period ending on November 6, 2018. need to separate families to comply with Many commenters expressed concern This final rule adopts the proposed the FSA when immigration custody is about a more restrictive parole standard rule, with some changes in response to necessary for a parent. that would allow minors in expedited comments. The final rule parallels the Additionally, changes to the removal proceedings who have not yet relevant and substantive terms of the operational environment since 1997, as been found to have a credible fear of Flores Settlement Agreement (FSA), well as the enactment of the HSA and persecution (or who have been found to with changes as are necessary to the TVPRA, have rendered some of the lack such a fear) to be paroled only on implement closely-related provisions of substantive terms of the FSA outdated the basis of medical emergency or law the Homeland Security Act of 2002 or unsuited to current conditions at the enforcement necessity, the same (HSA), Public Law 107–296, sec. 462, border, similarly making simultaneous standards applicable to adult aliens in 116 Stat. 2135, 2202, and the William compliance with the HSA, the TVPRA, expedited removal proceedings, while Wilberforce Trafficking Victims other immigration laws, and the FSA their credible fear claim remains Protection Reauthorization Act of 2008 problematic without modification. pending. (TVPRA), Public Law 110–457, title II, These provisions are designed to Many commenters expressed concern subtitle D, 122 Stat. 5044. implement the substantive and about this standard, but it draws from This final rule also takes into account underlying purpose of the FSA, by the statute, which imposes a uniquely changes in factual circumstances since ensuring that alien juveniles detained strong detention mandate for aliens in the time the FSA was approved in 1997 by DHS pursuant to the immigration this cohort: such aliens ‘‘shall be as well as extensive experience over the laws, and UACs who are transferred to detained pending a final determination past twenty years operating the the temporary care and custody of HHS, of credible fear of persecution and, if immigration system under the FSA. The are provided protections that are found not to have such a fear, until rule thus reflects the operational substantively parallel to protections removed.’’ INA 235(b)(1)(B)(iii)(IV). environment and ensures that the under the FSA, taking into account Some commenters stated that regulations accomplish a sound and intervening developments and changed accompanied minors would no longer proper implementation of governing circumstances. The Departments have be eligible for parole, which is incorrect, Federal statutes—including statutes also considered comments from the as they will be eligible under the same requiring DHS to retain custody of public, and this rule incorporates some standard as adults in the same position. aliens arriving at or crossing our borders adjustments from the proposed Additionally, other commenters without inspection during the pendency regulations based on those comments. mistakenly expressed that the FSA of immigration proceedings. It carefully The primary purpose of this rule is to guaranteed parole, which it does not, considers public comments, and sets codify the purposes of the FSA in nor does it provide a standard for forth for DHS a sustainable operational regulations, namely, to establish parole. ICE will continue to exercise its model of immigration enforcement, and uniform standards for the custody and parole authority, on a case-by-case basis, for HHS, codifies existing policies, care of alien juveniles during their in appropriate circumstances, including procedures, and practices related to the immigration proceedings and to ensure when a family unit establishes credible temporary care and custody of UACs. they are treated with dignity and fear of persecution or torture. The final For example, one shift since the FSA respect. The rule accordingly rule preamble responds to these entered into force in 1997 has been the implements the FSA. misconceptions, and the final regulatory 2015 judicial interpretation of the text in § 236.3(j)(4) takes into account agreement as applying to accompanied Summary of Key Provisions of the Final respondents’ concerns by stating clearly minors, i.e., juveniles encountered with Rule that parole for minors who are detained their parents or legal guardians. DHS As part of the process of codifying the pursuant to section 235(b)(1)(B)(ii) of strongly disagrees with that purpose of the FSA into regulations, the the INA or 8 CFR 235.3(c) will generally interpretation and disagrees that the final rule clarifies and improves certain serve an urgent humanitarian reason if FSA provisions were suited to handling policies and practices related to: DHS determines that detention is not the challenging circumstances that are • required to secure the minor’s presented—in exponentially more cases Parole appearance before DHS or the than in 1997—when aliens are In the NPRM, DHS proposed to immigration court, or to ensure the apprehended in family units. Indeed, amend 8 CFR 212.5(b), Parole of aliens minor’s safety of the safety of others. the Federal courts have agreed that the into the United States, by removing an DHS may also consider aggregate and

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historical data, officer experience, provide materially identical standards and inspection processes to address the statistical information, or any other for these facilities as what the FSA and commenters’ underlying concern, to probative information in making these state licensing would otherwise require, emphasize the important role third determinations. and thus implement the underlying parties play in this process, and to purpose of the FSA’s licensing underscore DHS’s commitment to • Licensing requirement, and in turn to allow ensuring that individuals in FRCs are Under the FSA, facilities that house families to remain together during their indeed held in appropriate conditions children must be licensed ‘‘by an immigration proceedings in an and treated with dignity and respect. appropriate State agency to provide appropriate environment. The licensing change does not impact residential, group, or foster care services Commenters stated that DHS has CBP facilities. Under the FSA, juveniles for dependent children.’’ FSA paragraph previously not shared the results of are transferred to licensed facilities ‘‘in 6. The state-licensing requirement is third-party audits. While ICE has any case in which [DHS] does not sensible for unaccompanied alien publicly posted the results of all facility release a minor . . . .’’ FSA paragraph children (UACs), because all States have inspection reports submitted by third- 19. Thus, the only facilities which must licensing processes for the housing of party contractors within 60 days of be licensed under the FSA are those unaccompanied juveniles who are by inspection since May 2018, these posts facilities to which juveniles are definition ‘‘dependent children,’’ and have not included results of FRC transferred following their initial accordingly the rule does not change inspections. See Facility Inspections, encounter. Facilities at which juveniles that requirement for those juveniles. But https://www.ice.gov/facility-inspections are held immediately following their the need for the license to come (last updated Mar. 15, 2019). To directly arrest, including CBP holding facilities, specifically from a ‘‘State agency’’ address the commenters’ concerns, the are governed by paragraph 12 of the (rather than a Federal agency) is final rule provides that third-party FSA, and are not required to be licensed problematic for DHS now that the FSA inspections of FRCs will be posted in under the FSA. Accordingly, these has been held in recent years to apply the same manner and adds the phrase facilities are also not included within to accompanied minors, including those ‘‘DHS will make the results of these the definition of ‘‘licensed facility’’ in held at FRCs, because States generally audits publicly available’’ to the this rule. DHS notes that CBP facilities do not have licensing schemes for definition of ‘‘licensed facility.’’ are also subject to regular oversight and facilities to hold minors who are Commenters also stated that DHS inspection by entities such as CBP’s together with their parents or legal should not be allowed to self-license Office of Professional Responsibility guardians. The application of the FSA’s detention facilities because current (OPR), DHS’ Office of Inspector General, requirement for ‘‘state’’ licensing to facilities do not have adequate oversight DHS’ Office of Civil Rights and Civil accompanied minors has effectively and, as a result, DHS is not currently Liberties, and the Government required DHS to release minors and—to capable of maintaining clean, humane, Accountability Office. avoid family separation—their parents and safe detention centers. They cited • Bond Hearings from detention in a non-state-licensed the Office of the Inspector General, facility, even if the parent/legal DHS, OIG–18–67 report, ICE’s DHS proposed revisions to § 236.3(m) guardian and child could and would Inspections and Monitoring of Detention to state that bond hearings are only otherwise continue to be detained Facilities Do Not Lead to Sustained required for minors in DHS custody together during their immigration Compliance or Systemic Improvements who are in removal proceedings under proceedings, consistent with applicable (June 26, 2018) to highlight the section 240 of the INA, to the extent law, including statutes that require deficiencies in the agency’s self- permitted by 8 CFR 1003.19. DHS also detention in these circumstances inspections by third-party contractors. proposed updating the language pending removal proceedings or to However, this report did not examine regarding bond hearings to be consistent effectuate a removal order. See, e.g., INA oversight of the FRCs. As such, it is of with the changes in immigration law. 235(b)(1)(B)(iii)(IV). limited value in assessing ICE’s Several commenters supported or DHS proposed to define ‘‘licensed oversight of the FRCs. FRCs are subject acknowledged that proposed 8 CFR facility’’ as an ICE detention facility that to a different set of detention standards 236.3(m) maintained the process is licensed by the state, county or than other facilities and receive required by FSA paragraph 24(A), while municipality in which it is located. But inspections more frequently, and by a another set of commenters did not because most States do not offer a larger number of outside entities than explicitly endorse the provision but licensing program for family unit those detention centers reviewed in the acknowledged that it provided the detention, DHS also proposed that OIG report. DHS also notes that ICE has protections and processes required by where state licensing is unavailable, a already taken several steps to address the FSA. Other commenters expressed facility will be licensed if DHS employs OIG’s recommendations. The agency’s due process concerns. DHS agrees with commenters that the an outside entity to ensure that the existing commitment to considering proposed regulatory text at 8 CFR facility complies with family residential seriously OIG’s recommendations 236.3(m) reflects the provisions of the standards established by ICE. Section regarding detention facilities and FSA regarding existence of bond 236.3(b)(9) requires DHS to employ instituting them as appropriate will not redetermination hearings for minors in third parties to conduct audits of FRCs change as a result of this final rule. In DHS custody who are in removal to ensure compliance with ICE’s family this final rule, however, DHS has added proceedings pursuant to INA 240, to the residential standards. This rule adopts to the definition of licensed facilities extent permitted by 8 CFR 1003.19. The these provisions as final, and thus that audits will occur when an FRC understanding that the term eliminates the barrier to the continued opens and regularly going forward. In ‘‘deportation hearings’’ in paragraph use of FRCs by creating a Federal addition, DHS has added a more 24(A) of the FSA refers to what are now alternative to meet the ‘‘licensed thorough explanation of its standards facility’’ definition.1 The goal is to known as removal proceedings has been of facilities, the new DHS regulations would define reiterated throughout the Flores 1 The FSA defines the term ‘‘licensed program,’’ the term ‘‘licensed facility.’’ The HHS regulations litigation. Accordingly, FSA paragraph but because DHS does not operate programs outside define the term ‘‘licensed program.’’ 24(A) requires bond redetermination

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hearings solely for those alien minors in contrary, DHS will make and record needs of UACs. Care provider staff are DHS custody who are in removal continuous efforts to release a minor in trained to identify UACs who have been proceedings under INA 240. Minors its custody and, as discussed more fully smuggled (i.e., transported illegally over who are in expedited removal below, will generally consider paroling a national border) and/or trafficked into proceedings are not entitled to bond minors detained pursuant to INA the United States. Care providers must hearings; rather, DHS may parole such 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who deliver services that are sensitive to the aliens on a case-by-case basis. See do not present a safety risk or risk of age, culture, and native language of each Jennings v. Rodriguez, 138 S. Ct. 830, absconding as serving an urgent child as well. 844 (2018) (holding that INA 235(b)(1) humanitarian reason. Each ORR-funded care provider unambiguously prohibits release on Moreover, DHS has adopted rigorous program maintains ORR-approved bond and permits release only on standards for facilities precisely to policies and procedures for parole). Minors in removal proceedings minimize further negative impacts on interdisciplinary clinical services, under INA 240 may appeal bond minors. DHS mandates training for including standards on professional redetermination decisions made by an personnel who regularly interact with licensing and education for staff, immigration judge to the Board of minors and UACs during the course of according to staff role or discipline. Immigration Appeals, in accordance their official duties. For example, ICE Staff who are required to have with existing regulations found in 8 CFR Enforcement and Removal Operations professional certifications must 1003.19, and are informed of their right (ERO) officers receive training on family maintain licensure through continuing to review. Accordingly, DHS is not units and UACs in the Basic education requirements, and all care amending regulatory provisions Immigration Enforcement Training provider staff must complete at a regarding the bond provisions for Program (BIETP). The BIETP is the basic minimum 40 hours of training annually. minors based on public comments. training for ERO officers and occurs at All UACs in HHS’ care participate in the beginning of their career. weekly individual counseling sessions Major Commenter Concerns Additionally, ERO’s Field Office with trained social work staff, where the • Trauma Juvenile Coordinators (FOJC) participate provider reviews the child’s progress, in annual training. This annual training establishes short term objectives, and Many commenters expressed serious focuses on policies, procedures and addresses developmental and crisis- concerns about child trauma. Comments protocols in accordance with the FSA, related needs. Clinical staff may focused on the trauma juveniles HSA, and TVPRA. FOJCs constitute a increase these once-a-week sessions if a experience during their dangerous specialized officer corps whose more intensive approach is needed. If journey to the United States (often at the expertise informs colleagues and leaders children have acute or chronic mental hands of smugglers and traffickers), often confronting high-profile cases health illnesses, HHS refers them for trauma associated with experiences in involving UACs and family units. FOJCs mental health services in the their country of origin, the possibility of liaise with HHS ORR’s Federal Field community. government custody-induced trauma in Specialists, who make case-by-case UACs participate in informal group the United States, and in particular placement decisions. FOJC training counseling sessions at least twice a trauma caused by detention itself, and covers best practices for case processing, week, where all children are present. the need for trauma-related training and A-file management, docket The sessions give UACs who are new to awareness throughout the immigration management, age determination, child the program the opportunity to get lifecycle, to include repatriation. Some interviewing techniques, child acquainted with staff, other children in commenters suggested, incorrectly, that development and trauma, screening for HHS care, and the rules of the program. the FSA explicitly prohibits the custody human trafficking, transport, the ORR These sessions provide an open forum of children entirely and therefore, placement process and an overview of where everyone has an opportunity to temporarily detaining family units FRCs and Family Residential Standards. speak. Together, UACs and care together is unjustified. FRCs are staffed with medical providers make decisions on DHS disagrees with the view that the professionals and social workers recreational activities and resolve issues FSA altogether prohibits detention of specially trained to recognize the affecting the UACs in care. juveniles (including in family units). symptoms of trauma and provide • Best Interests of the Child The FSA clearly contemplates, allows, appropriate treatment. and articulates standards for the custody CBP generally employs contracted Commenters raised issues regarding of juveniles in a variety of medical staff, who provide medical what was in the best interests of the circumstances. The final rule screening and appropriate triage to child. DHS and HHS recognize that this accordingly allows for the detention of minors and UACs in custody along the is the heart of the FSA. Both minors as well. Moreover, DHS’s southwest border. Where appropriations Departments take seriously their experience shows that family units who and funding permits, CBP also employs responsibility to provide appropriate are released often abscond, and other contracted staff who are able to care to juveniles, many of whom have detention is an important enforcement address the unique needs of juveniles. recently endured a hazardous journey to tool, particularly in controlling the Additionally, all Border Patrol agents the United States. Juveniles are subject border. and CBP officers receive training related to different custody protocols DHS acknowledges, however, that to the processing and interviewing of depending upon whether they are detention and custody may have juveniles, screening UACs for trafficking unaccompanied or part of a family unit. negative impacts for minors and adults, concerns, and the appropriate custodial Under the HSA, responsibility for the and acknowledges the importance of treatment of juveniles. apprehension, temporary detention, identifying signs of trauma and ensuring Separately, HHS ensures that ORR- transfer, and repatriation of UACs is that personnel are properly trained to funded care provider staff are trained in delegated to DHS; whereas the identify and respond to signs of trauma, techniques for child-friendly and responsibility for coordinating and particularly among juveniles. DHS notes trauma-informed interviewing, ongoing implementing the care and placement of that this rule does not mandate assessment, observation, and treatment UACs with sponsors is delegated to detention for all family units. On the of the medical and behavioral health HHS.

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CBP takes temporary custody of UACs • Section 236.3(b)(9), which defines • Section 236.3(j) and (n) now apprehended and encountered at the Licensed Facility, requires DHS to provide that DHS is not precluded from border, while ICE handles custody employ third parties to conduct audits releasing a minor who is not a UAC to transfer and repatriation of FRCs to ensure compliance with ICE’s someone other than a parent or legal responsibilities, apprehends UACs in family residential standards. In response guardian, specifically a brother, sister, the interior of the country, and to comments and for full transparency, aunt, uncle, or grandparent who is not represents the Federal Government in DHS is adding the phrase ‘‘DHS will in detention and is otherwise available removal proceedings. Within 72 hours, make the results of these audits publicly to provide care and physical custody. UACs in DHS custody are generally available’’ to the definition. DHS has • DHS has added new § 236.3(j)(2)– transferred into HHS custody, absent also included in the definition that (4) to identify the specific statutory and exceptional circumstances. Minors who audits will occur upon the opening of a regulatory provisions that govern the do not meet the statutory definition of facility and on a regular basis thereafter custody and/or release of non-UAC a UAC, including accompanied minors to address comments regarding minors in DHS custody based on the who enter the country as part of a family oversight of current facilities. type and status of immigration unit, may be placed in FRCs. These • In § 236.3(b)(11), which defines a proceedings. • FRCs are designed to take into account Non-Secure Facility, DHS agrees with DHS has added a new § 236.3(j)(4) the best interests of children during commenters that the intention of the to state clearly that the Department will custody, pursuant to applicable laws., proposed rule was to provide a consider parole for all minors who are including by keeping the child with his definition of non-secure when the term detained pursuant to section or her parent(s) as a family unit. was not otherwise defined under the 235(b)(1)(B)(ii) of the INA or 8 CFR Several commenters suggested, state law where the facility is located. 235.3(c), and that paroling such minors incorrectly, that the FSA prohibits Given commenters’ concerns that the who do not present a safety risk or risk temporary custody of juveniles entirely regulatory text was unclear, DHS will of absconding will generally serve an and that, therefore, detention goes clarify the definition in this final rule urgent humanitarian reason. Paragraph inherently against the best interests of a and add ‘‘under state law’’ to the (j) now also states that DHS takes child. DHS notes that even the authors definition. aggregate and historical data, officer • In § 236.3(f)(1) regarding transfer of of the FSA understood some amount of experience, statistical information or UACs from DHS to HHS, DHS agrees to physical custody was going to be any other probative information into amend the proposed regulatory text to necessary and appropriate, as discussed account when determining whether clarify that the reference to 8 U.S.C. above. The conditions of facilities and release may be appropriate. 1232(a)(2) refers to the processing of a • Section 236.3(o) is amended to shelters that house children in DHS UAC from a contiguous country. DHS is clarify that the Juvenile Coordinator’s custody are designed to afford a deleting ‘‘subject to the terms of’’ and duty to collect statistics is in addition to protective environment for the best replacing it with ‘‘processed in the requirement to monitor compliance interests of the child and must adhere accordance with.’’ with the terms of the regulations. to the statutory, regulatory, and court- • In § 236.3(f)(4)(i) regarding the • In § 410.101, HHS agrees to amend ordered requirements and standards transportation of UACs, DHS is the definition of ‘‘special needs minor,’’ governing the care and custody of amending the regulatory text to make replacing the term ‘‘retardation’’ with children. FRCs are also designed to clear that, as a general matter, UACs are ‘‘intellectual disability.’’ allow the child to live with his or her not transported with unrelated detained • In § 410.201(e), HHS agrees with family, and thus to preserve family adults. The two situations described in multiple legal advocacy organizations’ unity even when custody is warranted. the regulatory text are limited analysis that the FSA and TVPRA run And HHS care-provider facilities exceptions to this general rule. DHS is in contradiction to each other on the undergo rigorous State licensing adding the reference to unrelated placement of UACs in secure facilities processes in order to serve as residential ‘‘detained’’ adults, for clarity. based solely on the lack of appropriate child care shelters for the temporary • In § 236.3(g)(1)(i), DHS is amending licensed program availability; therefore, care of UACs. This final rule the procedures applicable to the ORR is striking the following clause implements those care and custody apprehension and processing of minors from this section: ‘‘. . . or a State or requirements and standards in full or UACs. The regulatory text will be county juvenile detention facility.’’ force. clear that the notices required, • In § 410.202, in response to Summary of Changes From the including Form I–770, will be provided, commenters’ concerns, HHS clarifies Proposed Rule read, or explained to all minors and that it places UACs in licensed UACs in a language and manner that programs except if a reasonable person Following careful consideration of the they understand, not just to those would conclude ‘‘based on the totality public comments received, the minors believed to be less than 14 or of the evidence and in accordance with Departments have made several who are unable to understand the subpart G’’ that the UAC is an adult. modifications to the regulatory text notice, as was proposed in the NPRM. • In § 410.203, in response to proposed in the NPRM. These changes • In § 236.3(g)(2)(i) regarding DHS commenters’ concerns, HHS clarifies are: custodial care immediately following that it reviews placements of UACs in • Section 212.5(b) now provides that apprehension, DHS agrees to delete the secure facilities at least monthly and DHS is not precluded from releasing a term ‘‘exigent circumstances,’’ as it is that the rule does not abrogate any minor who is not a UAC to someone redundant to ‘‘emergency.’’ requirements that HHS place UACs in other than a parent or legal guardian, • In § 236.3(i)(4), commenters the least restrictive setting appropriate specifically a brother, sister, aunt, uncle, requested additional language tracking to their age and any special needs. or grandparent who is not in detention. the verbatim text of FSA Ex. 1 paragraph • In § 410.302(a), in response to • Section 236.3(b)(2) defines Special B and C. DHS reiterates that these commenters’ concerns, HHS clarifies Needs Minor. DHS agrees to remove standards in § 236.3(i)(4) apply to the that the licensed program providing care ‘‘retardation’’ and replace it with non-secure, licensed facilities used for for a UAC shall make continual efforts ‘‘intellectual disability.’’ housing family units—FRCs. at family reunification as long as the

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UAC is in the care of the licensed responsibility for the care and custody enforcement actions. The Office of program. of all UACs who are not eligible to be Refugee Resettlement (ORR) encounters • In § 410.600(a) regarding transfer of repatriated to a contiguous country with UACs when they are referred to ORR UAC, the proposed regulatory text the Secretary of Health and Human custody and care by CBP, after border stated that, ‘‘ORR takes all necessary Services.2 Prior to the transfer of the encounters, or by direct referral from precautions for the protection of UACs program, the Commissioner of ICE, after ICE-initiated interior during transportation with adults.’’ Immigration and Naturalization, immigration enforcement. It is However, as ORR does not transport through a delegation from the Attorney important to note that HHS does not adult aliens, HHS has decided to strike General, had authority ‘‘to establish enforce immigration measures; that is this language from the final rule. such regulations . . . as he deem[ed] the role and responsibility of HHS’ • In § 410.700 HHS is adding the necessary for carrying out his authority Federal partners within DHS. ORR is a ‘‘totality of the evidence and under the provisions of this Act.’’ INA child welfare agency and provides circumstances’’ for age determinations sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); shelter, care, and other essential standards to mirror the DHS standard in 8 CFR 2.1 (2002). In accordance with the services to UACs, while working to compliance with statute. See 8 U.S.C. relevant savings and transfer provisions reunite them with family or other 1232(b)(4). approved sponsors as soon as possible, • of the HSA, see 6 U.S.C. 279, 552, 557; In § 410.810(b), HHS declines to see also 8 U.S.C. 1232(b)(1), the ORR with safety governing the process. In FY place the burden of evidence in the Director now possesses the authority to 2017, 40,810 UACs were placed in independent internal custody hearings promulgate regulations concerning ORR’s care. In FY 2018, 49,100 UACs on itself; however, it has modified the ORR’s administration of its were placed in ORR’s care. (Please note rule text to indicate that HHS bears the responsibilities under the HSA and that these numbers may reflect UACs initial burden of production supporting TVPRA, and the FSA at paragraph 40 (as who were in ORR’s care from one fiscal its determination that a UAC would modified) specifically envisions year into the next.) pose a danger or flight risk if discharged promulgation of such regulations. The Departments’ current operations from HHS’ care. The UAC bears the and procedures for implementing the burden of persuading the independent C. Costs and Benefits terms of the FSA, the HSA, and the hearing officer to overrule the This rule implements the FSA by TVPRA are the primary baseline against government’s position, under a establishing uniform standards for the which to assess the costs and benefits of preponderance of the evidence custody and care of alien juveniles this rule. DHS and HHS already incur standard. during their immigration proceedings the costs for these operations; therefore, B. Legal Authority and to ensure they are treated with they are not costs of this rule. dignity and respect. The rule adopts The primary changes to DHS’s current The Secretary of Homeland Security regulatory measures that materially operational environment resulting from derives authority to promulgate these parallel the FSA standards and this rule are implementing an regulatory amendments primarily from protections, and also by codifying the alternative licensing process for FRCs the Immigration and Nationality Act current requirements for complying and making changes to 8 CFR 212.5 to (INA or Act), as amended, 8 U.S.C. 1101 with the FSA, the HSA, and the TVPRA, align parole for minors in expedited et seq. The Secretary may ‘‘establish and respond to changed factual and removal with all other aliens in such regulations’’ as he deems necessary operational circumstances. expedited removal, consistent with the for carrying out his authorities under U.S. Customs and Border Protection applicable statutory authority. Subject the INA. INA sec. 103(a)(3), 8 U.S.C. (CBP) and U.S. Immigration and always to resource constraints, these 1103(a)(3). In addition, section 462 of Customs Enforcement (ICE) encounter changes may result in additional or the HSA and section 235 of the TVPRA minors and UACs in different manners. longer detention for some groups of prescribe substantive requirements and CBP generally encounters UACs and minors. Specifically, minors who are in procedural safeguards to be minors at or near the border. In Fiscal expedited removal proceedings whose implemented by DHS and HHS with Year (FY) 2017, CBP apprehended credible-fear determination is still respect to unaccompanied alien 113,920 juveniles.3 In FY 2018, CBP pending or who lack a credible fear and children (UACs). apprehended 107,498 juveniles. are awaiting removal are more likely to Section 462 of the HSA also Generally, ICE encounters minors either be held until removal can be transferred to the Office of Refugee upon transfer from CBP to an FRC, or effectuated. Furthermore, minors who Resettlement (ORR) Director ‘‘functions during interior enforcement actions. In have been found to have a credible fear under the immigration laws of the FY 2017, 37,825 individuals were or who are otherwise in INA section 240 United States with respect to the care of booked into ICE’s three FRCs, 20,606 of proceedings, and who pose a flight risk unaccompanied alien children that were whom were minors. In FY 2018, 45,755 or danger if released, are more likely to vested by statute in, or performed by, individuals were booked into ICE’s be held until the end of their removal the Commissioner of Immigration and three FRCs, 24,265 of whom were proceedings, although limited bed space Naturalization.’’ 6 U.S.C. 279(a). The in FRCs imposes a significant constraint minors. ICE generally encounters UACs ORR Director may, for purposes of on custody of this cohort. DHS estimates when it transports UACs who are performing a function transferred by the total number of minors in FY 2017 transferred from CBP custody to ORR this section, ‘‘exercise all authorities in groups that might be detained longer custody, as well as during interior under any other provision of law that was 2,787 and in FY 2018 was 3,663. were available with respect to the The numbers of accompanying parents 2 Some UACs from contiguous countries may be performance of that function to the permitted to withdraw their application for or legal guardians are not included in official responsible for the performance admission and be repatriated. These UACs are not these estimates. While the above of the function’’ immediately before the referred to HHS. 8 U.S.C. 1232(a)(2). estimates reflects the number of minors transfer of the program. 6 U.S.C. 3 Throughout this final rule, the Departments in FY 2017 and FY 2018 in groups of generally use the term ‘‘juvenile’’ to refer to any 279(f)(1). alien under the age of 18. For further explanation, individuals that would likely be held Consistent with provisions in the see below for discussion of the terms ‘‘juvenile,’’ until removal can be effectuated, DHS is HSA, the TVPRA places the ‘‘minor,’’ and ‘‘unaccompanied alien child (UAC).’’ unable to forecast the future total

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number of such minors that may protections to minors that the FSA imposing a condition on juveniles’ bail experience additional or longer intended. that their parents’ or legal guardians’ detention as a result of this rule, or for [sic] surrender to INS agents for D. Effective Date how much longer individuals may be interrogation and deportation; and (c) detained because there are many other This final rule will be effective on the conditions maintained by the INS in variables that may affect such estimates. October 22, 2019, 60 days from the date facilities where juveniles are DHS also notes that resource constraints of publication in the Federal Register. incarcerated.’’ See Flores Compl. on the availability of bed space mean III. Background and Purpose paragraph 1. The plaintiffs claimed that that if some individuals are detained for the INS’s release and bond practices and longer periods of time, then less bed A. History policies violated, among other things, space will be available to detain other 1. The Flores Settlement Agreement the INA, the Administrative Procedure aliens, who in turn could be detained Act, and the Due Process Clause and for less time than they would have been Prior to the enactment of the HSA, the Equal Protection Guarantee under the absent the rule. DHS is unable to Attorney General and the legacy INS Fifth Amendment. See id. paragraphs provide an aggregate estimate of the cost had the primary authority to administer 66–69. of any increased detention on the and enforce the immigration laws. In the Prior to a ruling on any of the issues, individuals being detained. To the period leading up to the Flores litigation on November 30, 1987, the parties extent this rule results in filling any in the mid-1980s, the general entered into a Memorandum of available bed space at current FRCs, this nationwide INS policy, based on Understanding (MOU) on the conditions may thereby increase variable annual regulations promulgated in 1963 and the of detention. The MOU stated that costs paid by ICE to operators of current Juvenile Justice and Delinquency minors in INS custody for more than 72 FRCs. Prevention Act of 1974, was that alien hours following arrest would be housed DHS notes that while additional or juveniles could petition an immigration in facilities that met or exceeded the longer detention could result in the judge for release from INS custody if an standards set forth in the April 29, 1987, need for additional bed space, there are order of deportation was not final. See U.S. Department of Justice Notice of many factors that would be considered Reno v. Flores, 507 U.S. 292, 324–25 Funding in the Federal Register and in in opening a new FRC and at this time (1993). In 1984, the Western Region of the document ‘‘Alien Minors Shelter ICE is unable to determine if this rule the INS implemented a different release Care Program—Description and would result in costs to build additional policy for juveniles, and the INS later Requirements.’’ See Notice of bed space. If ICE awarded additional adopted that policy nationwide. Under Availability of Funding for Cooperative contracts for expanded bed space as a that policy, juveniles could only be Agreements; Shelter Care and Other result of this rule, ICE would also incur released to a parent or a legal guardian. Related Services to Alien Minors, 52 FR additional fixed costs and variable costs The rationale for the policy was two- 15569, 15570 (Apr. 29, 1987). The to provide contracted services beyond fold: (1) To protect the juvenile’s Notice provided that eligible grant current FRC capacity. welfare and safety, and (2) to shield the applicants for the funding described in The primary purpose of the rule is to INS from possible legal liability. The the Notice included organizations that implement applicable statutory law and policy allowed such alien juveniles to were ‘‘appropriately licensed or can the FSA through regulations, to respond be released to other adults only in expeditiously meet applicable state to changes in law and circumstances, unusual and extraordinary cases at the licensing requirements for the provision and in turn enable termination of the discretion of the District Director or of shelter care, foster care, group care agreement as contemplated by the FSA Chief Patrol Agent. See Flores v. Meese, and other related services to dependent itself, in doing so DHS will move away 942 F.2d 1352 (9th Cir. 1991) (en banc). children . . . .’’ Id. from judicial governance to executive On July 11, 1985, four alien juveniles At approximately the same time that government via regulation. The result is filed a class action lawsuit in the U.S. the MOU was executed, the INS to provide for the sound administration District Court for the Central District of published a proposed rule on the of the detention and custody of alien California, Flores v. Meese, No. 85–4544 Detention and Release of Juveniles to minors and UACs to be carried out fully, (C.D. Cal. filed July 11, 1985). The case amend 8 CFR parts 212 and 242. See 52 pursuant to the INA, HSA, TVPRA, and ‘‘ar[ose] out of the INS’s efforts to deal FR 38245 (Oct. 15, 1987). The stated existing regulations issued by the with the growing number of alien purpose of the rule was ‘‘to codify the Departments responsible for children entering the United States by [INS] policy regarding detention and administering those statutes, rather than themselves or without their parents release of juvenile aliens and to provide partially carried out via a decades-old (unaccompanied alien minors).’’ Flores a single policy for juveniles in both settlement agreement. The rule ensures v. Meese, 934 F.2d 991, 993 (9th Cir. deportation and exclusion that applicable regulations reflect the 1990). The class was defined to consist proceedings.’’ Again, however, the Departments’ current operations with of ‘‘all persons under the age of eighteen proposed regulations did not address respect to minors and UACs in (18) years who have been, are, or will the considerations that might arise if the accordance with the relevant and be arrested and detained pursuant to 8 INS ever held an accompanied minor in substantive terms of the FSA and the U.S.C. 1252 by the INS within the INS’ custody along with his or her parent, TVPRA, as well as the INA. Further, by Western Region and who have been, are, together as a unit. For example, the modifying the literal text of the FSA (to or will be denied release from INS preamble discussed the need to the extent it has been interpreted to custody because a parent or legal coordinate ‘‘family reunification’’ and apply to accompanied minors) in guardian fails to personally appear to ‘‘locating suitable placement of juvenile limited cases to reflect and respond to take custody of them.’’ Id. at 994. The detainees,’’ but did not discuss intervening statutory and operational Flores litigation challenged ‘‘(a) the preserving family unity when a minor is changes, DHS ensures that it retains [INS] policy to condition juveniles’ already in custody together with the discretion to detain families, as release on bail on their parents’ or legal parent. Id. (emphasis added). appropriate and pursuant to its statutory guardians’ surrendering to INS agents The INS issued a final rule in May and regulatory authorities, to meet its for interrogation and deportation; (b) the 1988. 53 FR 17449 (May 17, 1988). The enforcement needs, while still providing procedures employed by the INS in rule provided for release to a parent,

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guardian, or other relative, and exceed the scope of the Attorney clause has been interpreted by courts to discretionary release to other adults. See General’s discretion under the INA to have maintained the FSA as enforceable 53 FR at 17451. It also provided that continue custody over arrested aliens, against HHS and DHS. By promulgating when adults are in detention, INS because the challenged regulations these final rules, HHS and DHS are would consider release of the adult and rationally pursued the lawful purpose of completing an administrative action to juvenile. Id. protecting the welfare of such juveniles. terminate the FSA. On May 24, 1988, the district court Id. at 315. To summarize agency roles under the where the original Flores case was filed The regulations promulgated in 1988 current statutory framework: DHS held that the recently codified INS have remained in effect since apprehends, provides care and custody regulation, 8 CFR 242.24 (1988), publication but were moved to 8 CFR for, transfers, and removes alien minors; governing the release of detained alien 236.3 in 1997. See 62 FR 10312, 10360 DHS apprehends, transfers, and removes minors, violated substantive due (Mar. 6, 1997). They were amended in UACs; and HHS ORR provides for care process, and ordered modifications to 2002 when the authority to decide and custody of UACs who are in Federal the regulation. The district court also issues concerning the detention and custody (other than those permitted to held that INS release and bond release of juveniles was moved to the withdraw their application for procedures for detained minors in Director of the Office of Juvenile Affairs admission) and referred to HHS ORR by deportation proceedings fell short of the from the District Directors and Chief other Departments. requirements of procedural due process, Patrol Agents. See 67 FR 39255, 39258 2. The Reorganization of the and therefore ordered the INS (June 7, 2002). Immigration and Naturalization Service ‘‘forthwith’’ to provide to any minor in The Supreme Court’s decision in custody an ‘‘administrative hearing to Reno v. Flores did not fully resolve all The FSA was entered into by the INS, determine probable cause for his arrest of the issues in the case. After that which was under the U.S. Department and the need for any restrictions placed decision, the parties agreed to settle the of Justice, and the plaintiffs in the Flores upon his release.’’ Flores v. Meese, 934 matter and resolved the remainder of lawsuit. INS had within it all of the F.2d 991, 993 (9th Cir. 1990) (quoting the litigation in the FSA, which the immigration functions: Border patrol, the district court). The INS appealed, district court approved on January 28, detention, enforcement, deportation, and the Ninth Circuit reversed the 1997. In 1998, the INS published a investigations, and adjudication of district court’s holdings that the INS proposed rule having a basis in the immigration benefits. After the 9/11 exceeded its statutory authority in substantive terms of the FSA, entitled attacks a major reorganization of the promulgating 8 CFR 242.24 and that the Processing, Detention, and Release of government took place, and most of the regulation violated substantive due Juveniles. See 63 FR 39759 (July 24, INS functions were transferred to the process. The Ninth Circuit also reversed 1998). Over the subsequent years, that newly formed DHS in 2003 and divided the district court’s procedural due proposed rule was not finalized. In into three distinct components. The U.S. process holding, identified the legal 2001, as the original termination date of Citizenship and Immigration Services standard that the district court should the FSA approached, the parties added (USCIS) took over adjudication of have applied, and remanded the issue a stipulation in the FSA, which immigration benefits. ICE took over the for the district court to further explore terminates the FSA ‘‘45 days following investigative and enforcement functions the issue. Id. at 1013. On rehearing en defendants’ publication of final of INS, which included longer-term banc, however, the Ninth Circuit regulations implementing t[he] detention of aliens when warranted. vacated the original panel’s opinion, Agreement.’’ Stipulated Settlement CBP took over the functions on the affirmed the district court’s holding, and Agreement, Flores v. Reno, No. CV 85– border, including apprehension of those held that INS’s regulation was invalid 4544–RJK(Px) (C.D. Cal. Dec. 7, 2001). In entering illegally and inspections of because the regulation violated the alien January 2002, the INS reopened the individuals entering at ports of entry, as child’s due process and habeas corpus comment period on the 1998 proposed well as short-term detention for the rights, and detention where the alien rule, 67 FR 1670 (Jan. 14, 2002), but the purposes of processing aliens. The child was otherwise eligible for release rulemaking was ultimately abandoned. Homeland Security Act also transferred on bond or recognizance to a custodian Thus, as a result of the 2001 Stipulation, the responsibility for the care and served no legitimate purpose of the INS. the FSA has not terminated. The U.S. custody of UACs to HHS’ ORR. 6 U.S.C. Flores v. Meese, 942 F.2d 1352 (9th Cir. District Court for the Central District of 279(a). The obligations under the FSA 1991) (en banc) (‘‘The district court California has continued to rule on therefore also had to be divided after the correctly held that the blanket detention various motions filed in the case and reorganization. policy is unlawful. The district court’s oversee enforcement of the FSA. In 2008, Congress passed the TVPRA, order appropriately requires children to After the 2001 Stipulation, Congress which further provided that all UACs in be released to a responsible adult where enacted the HSA and the TVPRA, both government custody (other than those no relative or legal guardian is available of which impact the treatment of alien able to withdraw their application for and mandates a hearing before an juveniles. Among other changes, the admission and be immediately immigration judge for the determination HSA created DHS and, along with the repatriated) must be transferred to HHS of the terms and conditions of release.’’). TVPRA, transferred the functions under ORR. The INS appealed, and in 1993, the the immigration laws with respect to the U.S. Supreme Court rejected Plaintiffs’ care and then custody of UACs referred 3. The Change in Migration Patterns and facial challenge to the constitutionality by other Federal agencies to HHS ORR. the Creation of the Family Residential of the INS’s regulation concerning the The TVPRA also further regulated the Centers as a Response care of alien juveniles. Reno v. Flores, Departments’ respective roles with When the FSA was first entered into 507 U.S. 292 (1993). The Supreme Court respect to UACs. See 6 U.S.C. 111(a), and even when DHS was first created, held that the regulations did not violate 279; 8 U.S.C. 1232(b)(1). migration at the southern border any substantive or procedural due The HSA also contained a general primarily consisted of single adults and process rights or equal protection savings clause at 6 U.S.C. 552(a) with unaccompanied juveniles, mostly in principles. Id. at 306, 309. According to respect to the transfer of functions from their teens. Since then, the numbers of the Court, the regulations did not the INS to ORR and DHS. The savings minors, both accompanied and

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unaccompanied, has skyrocketed. In family units have been found with slides and jungle gyms. The facility 1993, for instance, the Supreme Court inadmissible at ports of entry.9 is non-secure and a family is not recognized that a surge of ‘‘more than As the number of family units physically prevented from leaving the 8,500’’ unaccompanied minors increased, the Government faced a new facility. represented a ‘‘problem’’ that is challenge: Housing children primarily The FRCs have video conferencing set ‘‘serious.’’ Reno, 507 U.S. at 294. Before in adult facilities, even with their up for court hearings and private 2012, the number of UACs encountered parents, while still trying to provide all meeting rooms so that families can meet by the government stayed relatively of the services juveniles need. In the with their attorneys or representatives. consistent with an average of about early 2000s, the government created ICE Child care is provided to the parents 7,000 to 8,000 UACs typically placed in Family Residential Centers (FRCs). By while they meet with their attorneys/ ORR custody each year before FY 2012.4 2016, there were three FRCs. Unlike the representatives or attend their court CBP facilities where juveniles are hearings. Interpreting services are But that then changed. From Fiscal temporarily held following available 24 hours a day via telephone. Year 2011 through 2018, apprehensions apprehension or encounter (which are Attorneys and representatives approved of UACs between ports of entry along designed for short-term detention), FRCs to appear at immigration court hearings the southwest border increased are more akin to a dormitory setting. For are provided access to the residents at dramatically: Were as follows, resulting example, the first FRC in Berks, various times each week, enabling in a substantial net increase over that Pennsylvania, was converted from a families to obtain counsel and not have time period: FY 2011: 15,949; FY 2012: senior living center. It has suites where to appear at immigration hearings as pro 24,403; FY 2013: 38,759; FY 2014: each family is housed separately. Beds, se respondents. 68,541; FY 2015: 39,970; FY 2016: tables, chests of drawers, and other 59,692; FY 2017: 41,435; FY 2018: B. Authority standard amenities are provided. 50,036.5 At ports of entry along the Bedding, towels, basic clothing, and 1. Statutory and Regulatory Authority southwest border, 10,678 UACs were toiletries are provided. There is also a found inadmissible in FY 2016; 7,246 a. Immigration and Nationality Act and laundry facility on premises. There is a UACs were found inadmissible in FY the Illegal Immigration Reform and large community ‘‘living room’’ that has 2017; and 8,624 UACs were found Immigrant Responsibility Act of 1996 a large screen television, large inadmissible in FY 2018.6 The INA, as amended, provides the cushioned couches and lounge chairs, a primary authority for DHS to detain Additionally, a new trend also began gaming area and a separate library that certain aliens for violations of the of families with young children crossing contains books, smaller television sets, immigration laws. Congress expanded the border. For family units, the overall video games, and board games. The legacy INS detention authority in numbers of apprehensions have facility also has an entire wing IIRIRA, Public Law 104–208, 110 Stat. increased dramatically: FY 2013: dedicated to classroom learning where 3009. In that legislation, Congress 14,855; FY 2014: 68,445; FY 2015: 39, minors at the facility go to school five amended the INA by providing that 838; FY 2016: 77,674; FY 2017: 75,622; days a week and study English and certain aliens were subject to either FY 2018: 107,212.7 At ports of entry, other age appropriate subjects. Another mandatory or discretionary detention by 26,062 family units were found wing is a medical facility where minors the INS. This authorization flowed to inadmissible in FY 2016, 29,375 family and their parents receive any necessary DHS after the reorganization under the units were found inadmissible in FY medical care, including all HSA. Specifically, DHS’s authority to 2017, and 53,901 family units were immunizations required for later detain certain aliens comes from found inadmissible in FY 2018.8 admission to U.S. public schools, and a sections 235, 236, and 241 of the INA, treatment area for those who have In FY 2019 so far, from October 2018 8 U.S.C. 1225, 1226, and 1231. Section entered the country with a through June 2019, the total number of 235 of the INA, 8 U.S.C. 1225, provides communicable disease, such as UAC apprehensions along the that applicants for admission to the tuberculosis. There are also phone Southwest border was 63,624, and the United States, including those subject to banks to call relatives, consulates, or total number of family unit expedited removal, shall be detained attorney/representatives. apprehensions was 390,308. An during their removal proceedings, In all FRCs, three hot ‘‘all-you-can- additional 3,572 UACs and 37,573 although such aliens may be released on eat’’ meals a day are provided, and parole in limited circumstances, snacks are available throughout the day. 4 See U.S. Department of Health and Human consistent with the statutory standard All three FRCs offer a variety of indoor Services, Administration for Children and Families, set forth in INA 212(d)(5), 8 U.S.C. Office of Refugee Resettlement, Unaccompanied and outdoor daily recreation activities 1182(d)(5) and standards set forth in the Alien Children Program, Fact Sheet (May 2014), for children and adults, and a monthly https://www.acf.hhs.gov/sites/default/files/orr/ regulations. Section 236 of the INA, 8 recreational schedule is posted within unaccompanied_childrens_services_fact_sheet.pdf. U.S.C. 1226, provides the authority to 5 communal areas in each facility. Indoor See U.S. Border Patrol, Total Unaccompanied arrest and detain an alien pending a Alien Children (0–17 years old Apprehensions, activities offered include a variety of decision on whether the alien is to be https://www.cbp.gov/sites/default/files/assets/ sports (e.g., basketball, badminton, removed from the United States, and documents/2019-Mar/bp-total-monthly-uacs-sector- indoor soccer, and volleyball), group fy2010-fy2018.pdf). section 241, 8 U.S.C. 1231, authorizes exercise classes, arts and crafts classes, 6 See https://www.cbp.gov/newsroom/stats/ofo- the detention of aliens during the period karaoke, movie nights, and seasonal and sw-border-inadmissibles-fy2017, https:// following the issuance of a final order www.cbp.gov/newsroom/stats/sw-border-migration/ holiday-themed activities. Outdoor of removal. Other provisions of the INA fy-2018. recreational facilities include soccer 7 also mandate detention of certain See U.S. Border Patrol, Total Family Unit fields, sand volleyball courts, handball Apprehensions, https://www.cbp.gov/sites/default/ classes of individuals, such as criminal courts, sand boxes, and play structures files/assets/documents/2019-Mar/bp-total-monthly- aliens. family-units-sector-fy13-fy18.pdf. 8 See https://www.cbp.gov/newsroom/stats/ofo- 9 See U.S. Customs and Border Protection, b. Homeland Security Act of 2002 sw-border-inadmissibles-fy2017, https:// Southwest Border Migration FY2019, available at: www.cbp.gov/newsroom/stats/sw-border-migration/ https://www.cbp.gov/newsroom/stats/sw-border- As noted, the HSA, Public Law 107– fy-2018. migration. 296, 116 Stat. 2135, transferred most of

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the functions of the INS from DOJ to the concerning the INS’s detention Motion to Enforce Settlement on newly-created DHS. DHS and its various regulations for alien minors. The FSA November 14, 2005. The court components are responsible for border was executed on behalf of the dismissed the matter on May 10, 2006. security, interior immigration Government on September 16, 1996. b. Motion To Enforce II enforcement, and immigration benefits The U.S. District Court for the Central adjudication, among other duties. DOJ’s District of California approved the FSA On February 2, 2015, Plaintiffs filed a EOIR retained its pre-existing functions on January 28, 1997. The FSA became second motion to enforce the agreement, relating to the immigration and effective 30 days after its approval by alleging that CBP and ICE were in naturalization of aliens, including the district court and provided for violation of the FSA because: (1) ICE’s conducting removal proceedings and continued oversight by that court. supposed no-release policy—i.e., an adjudicating defensive filings of asylum Paragraph 9 of the FSA explains its alleged policy of detaining all female- claims. purpose: To establish a ‘‘nationwide headed families, including children, for The functions regarding care of UACs policy for the detention, release, and as long as it takes to determine whether were transferred from the INS to HHS treatment of minors in the custody of they are entitled to remain in the United ORR. The HSA states ORR shall be the INS.’’ Paragraph 4 defines a ‘‘minor’’ States—violated the FSA; (2) ICE’s responsible to coordinate and as ‘‘any person under the age of eighteen routine confinement of class members implement the care and placement of (18) years who is detained in the legal in secure, unlicensed facilities breached UACs who are in Federal custody by custody of the INS,’’ but the definition the Agreement; and (3) CBP exposed reason of their immigration status. ORR excludes minors who have been class members to harsh and substandard was also tasked with identifying a emancipated or incarcerated due to a conditions, in violation of the sufficient number of qualified criminal conviction as an adult. The Agreement. individuals, entities, and facilities to FSA established procedures and On July 24, 2015, the district court house UACs, and with ensuring that the conditions for processing, granted Plaintiffs’ second motion to interests of the child are considered in transportation, and detention following enforce and denied Defendant DHS’s decisions and actions relating to his or apprehension, and set forth the contemporaneous motion to modify the agreement. Flores v. Johnson, 212 F. her care and custody. procedures and practices that the parties Supp. 3d 864 (C.D. Cal. 2015). The court agreed should govern the INS’s c. William Wilberforce Trafficking found: (1) The FSA applied to all alien discretionary decisions to release or Victims Protection Reauthorization Act minors in government custody, detain minors and to whom they should of 2008 including those accompanied by their or may be released. parents or legal guardians; (2) ICE’s Section 235 of the William The FSA was originally set to expire continuing detention of minors Wilberforce Trafficking Victims within five years, but on December 7, accompanied by their mothers was a Protection Reauthorization Act of 2008 2001, the Parties agreed to a termination material breach of the FSA; (3) the FSA (TVPRA), Public Law 110–457, Title II, date of ‘‘45 days following defendants’ requires Defendant DHS to release Subtitle D, 122 Stat. 5044 (codified in publication of final regulations minors with their accompanying parent principal part at 8 U.S.C. 1232), states implementing this Agreement.’’ or legal guardian unless this would that consistent with the HSA, and However, the proposed rule that was create a significant flight risk or a safety except as otherwise provided with published for that purpose was never respect to certain UAC from contiguous risk; (4) DHS housing minors in secure finalized. See 67 FR 1670 (reopening the and non-licensed FRCs violated the countries (see 8 U.S.C. 1232(a)), the care comment period for the 1998 proposed and custody of all UACs, including FSA; and (5) CBP violated the FSA by rule). A copy of the FSA and the 2001 holding minors and UACs in facilities responsibility for their detention, where Stipulation is available in the docket for appropriate, shall be the responsibility that were not safe and sanitary. Id. The this rulemaking. A principal purpose of Court ordered the government to show of HHS. The TVPRA, among other these regulations is to ‘‘implement[] the things, requires Federal agencies to cause why certain remedies should not Agreement,’’ and in turn to terminate be implemented as a result of these notify HHS within 48 hours of the FSA. apprehending or discovering a UAC, or violations. receiving a claim or having suspicion 3. Recent Court Orders The government filed a response to the Court’s order to show cause on that an alien in their custody is under a. Motion to Enforce I 18 years of age. 8 U.S.C. 1232(b)(2). The August 6, 2015. On August 21, 2015, the TVPRA further requires that, absent On January 26, 2004, Plaintiffs filed court issued a subsequent remedial exceptional circumstances, any Federal their first motion to enforce the order for DHS to implement six agency transfer a UAC to the care and agreement, alleging, among other things, remedies. Flores v. Lynch, 212 F. Supp. custody of HHS within 72 hours of that CBP and ICE: (1) Regularly failed to 3d 907 (C.D. Cal. 2015). In the decision, determining that an alien in its custody release minors covered by the FSA to the court clarified that, as provided in is a UAC. 8 U.S.C. 1232(b)(3). caregivers other than parents when FSA paragraph 12(A), in the event of an The Secretary of HHS delegated the parents refused to appear; (2) routinely emergency or influx, DHS need not authority under the TVPRA to the failed to place detained class members transfer minors to a ‘‘licensed program’’ Assistant Secretary for Children and in the least restrictive setting; (3) failed pursuant to the 3- and 5-day Families, 74 FR 14564 (2009), who in to provide class members adequate requirements of paragraph 12(A), but turn delegated the authority to the ORR education and mental health services, must transfer such minors ‘‘as Director, 74 FR 1232 (2009). and (4) exposed minors covered by the expeditiously as possible.’’ In the FSA to dangerous and unhealthy decision, the court referenced the 2. Flores Settlement Agreement conditions. Ultimately, after a lengthy Government’s assertion that DHS, on Implementation discovery process in which the average, would detain minors who are As discussed above, in the 1990s, the government provided Plaintiffs not UACs for 20 days—the general U.S. Government and Flores plaintiffs numerous documents related to the length of time required to complete entered into the FSA to resolve government’s compliance with the FSA, credible or reasonable fear processing at nationwide the ongoing litigation Plaintiffs filed a Notice of Withdrawal of that time for aliens in expedited

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removal. The court agreed that if 20 members with unrelated adults and affirming the district court’s decision, days was ‘‘as fast as [the Government] interfered with class members’ right to the Ninth Circuit also acknowledged . . . can possibly go,’’ the Government’s counsel. that determinations made at hearings practice of holding accompanied minors The district court also concluded that held under Paragraph 24A of the FSA in its FRCs, even if not ‘‘licensed’’ and CBP acted in violation of the FSA in the will not compel a child’s release, ‘‘non-secure’’ per FSA paragraph 19, Rio Grande Valley Border Patrol Sector. because ‘‘a minor may not be released may be within the parameters of FSA The court pointed to allegations that unless the agency charged with his or paragraph 12(A). Id. at 914. In a CBP failed to provide class members her care identifies a safe and decision issued on July 6, 2016, the adequate access to food and water, appropriate placement.’’ Id. at 868. The Ninth Circuit agreed with the district detained class members in conditions Government did not seek further review court that during an emergency or that were not safe and sanitary, and of the decision. influx, minors must be transferred ‘‘as failed to keep the temperature of the e. Motion To Enforce V expeditiously as possible’’ to a non- holding cells within a reasonable range. secure, licensed facility. Flores v. Lynch, The court ordered the appointment of a On April 16, 2018, Plaintiffs filed a 828 F.3d. 898, 902–03 (9th Cir. 2016). Juvenile Coordinator for ICE and CBP, fifth motion to enforce the agreement, The Ninth Circuit affirmed the district responsible for monitoring the agencies’ claiming ORR unlawfully denied class court’s holding that the FSA applies to compliance with the Agreement. On members licensed placements, all alien minors and UACs in August 15, 2019, the Ninth Circuit unlawfully medicated youth without government custody and concluded the dismissed the Government’s appeal of parental authorization, and district court did not abuse its that decision based on a lack of peremptorily extended minors’ discretion in denying the Government’s jurisdiction. See Flores v. Barr, No. 17– detention on suspicion that available motion to modify the FSA. The Ninth 56297 (9th Cir. Aug. 15, 2019). On custodians may be unfit. On July 30, Circuit, however, reversed the district October 5, 2018, the U.S. District Court 2018, the district court issued an Order. court’s determination that the FSA for the Central District of California Flores v. Sessions, 2:85–cv–04544– required the release of accompanying appointed a Special Master/ DMG–AGR (ECF No. 470, Jul. 30, 2018). parents. Id. Independent Monitor to oversee The Order discussed the Shiloh The government maintains that the compliance with the Agreement and Residential Treatment Center and terms of the FSA were intended to apply with the June 27, 2017 Order. The placement therein, as well as informed only to those alien children in custody Court’s order appointing the Monitor consent for psychotropic drugs in such who are unaccompanied. also allowed for oversight over HHS Center; placement in secure facilities; Nonetheless, reflecting existing circuit related to Motion to Enforce V, notice of placement in secure and staff- precedent that the FSA applies to discussed below. secure facilities; Director-level review of accompanied minors, this rule applies children previously placed in secure or to both accompanied and d. Motion To Enforce IV staff-secure facilities; and other issues. unaccompanied minors. On August 12, 2016, Plaintiffs filed a Readers should refer to the full Order fourth motion to enforce the agreement, for details. c. Motion To Enforce III claiming that ORR violated the On May 17, 2016, plaintiffs filed a agreement by failing to provide UACs in f. Motion for Relief From Settlement third motion to enforce the agreement, ORR custody with a bond On June 21, 2018, in accordance with claiming that DHS was violating the redetermination hearing by an the President’s June 20, 2018, Executive agreement by: (1) Holding class immigration judge. The Government Order ‘‘Affording Congress an members in CBP facilities that did not argued that the HSA and the TVPRA Opportunity to Address Family meet the requirements of the FSA; (2) effectively superseded the FSA’s bond- Separation,’’ the Government sought failing to advise class members of their hearing requirement with respect to limited emergency relief from two rights under the FSA; (3) making no UACs, that only HHS could determine provisions of the FSA—the release efforts to release or reunify class the suitability of a sponsor (an essential provision of Paragraph 14, as well as the members with family members; (4) part of release decision-making), and licensing requirements of Paragraph 19. holding class members routinely with that immigration judges lacked This relief was sought in order to permit unrelated adults; (5) detaining class jurisdiction over UACs in ORR custody. DHS to detain alien family units members for weeks or months in secure, On January 20, 2017, the court found together for the pendency of their unlicensed facilities in violation of the that HHS breached the FSA by denying immigration proceedings. The court FSA; and (6) interfering with class UACs the right to a bond hearing as denied this motion on July 9, 2018, and members’ right to counsel. The provided for in the FSA. Flores v. denied reconsideration of the motion on Government filed a response on June 3, Lynch, No. 2:850–cv–04544, 2017 WL November 5, 2018. 2016. 6049373 (C.D. Cal. Jan. 20, 2017). The That motion sought relief consistent On June 27, 2017, the district court district court agreed that only HHS with the proposed rule, although the issued an opinion concluding that ICE could determine the suitability of a proposed rule included some had not complied with the FSA because sponsor, but disagreed that subsequent affirmative proposals (like the Federal- it had failed to advise class members of laws fully superseded the FSA. The licensing regime) that were not at issue their rights under the FSA, failed to Government appealed to the Ninth in that motion. For example, as make continuous efforts to release class Circuit. On July 5, 2017, the Ninth discussed below, by creating an members, and failed to release class Circuit affirmed the district court’s alternative for meeting the ‘‘licensed members as required by FSA paragraphs ruling. The Ninth Circuit reasoned that facility’’ definition for FRCs, the final 12(A) and 14. The Court also found that if Congress had intended to terminate rule will eliminate a barrier to keeping FRCs were unlicensed and secure. the settlement agreement in whole or in family units in custody during their Flores v. Sessions, No. 2:85–cv–04544 part through passage of the HSA or immigration proceedings, consistent (C.D. Cal. June 27, 2017). The district TVPRA, it would have said so with applicable law, while still court, however, rejected the claims that specifically. Flores v. Sessions, 862 F.3d providing similar substantive ICE had impermissibly detained class 863 (9th Cir. 2017). However, while protections to minors.

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The issue of family separation and Paso and RGV Sectors by ‘‘a public the practical implications of the FSA, as reunification continues to be the subject health expert authorized to mandate a recently interpreted, and in particular of litigation in multiple jurisdictions. remediation plan that [CBP] must follow the lack of state licensing for FRCs and This rule does not directly address to make these facilities safe and the release requirements for minors who matters related to that litigation. A sanitary;’’ (2) immediate access to CBP are not in state-licensed facilities, have significant purpose of this rule with facilities in the El Paso and RGV Sectors effectively prevented DHS from using regard to accompanied minors is to by medical professionals ‘‘who can family detention for more than a limited allow DHS to make decisions regarding assess the medical and psychological period of time (typically approximately the detention of families applying a needs of the children and triage 20 days), and in turn often required the single legal framework, and to enable appropriately;’’ (3) ‘‘deployment of an release of families regardless of the DHS to hold a family together as a unit intensive case management team to flight risk posed. DHS believes that in an FRC when lawful and appropriate. focus on expediting the release of combination of factors creates a [certain UACs] to alleviate the backlog powerful incentive for adults to bring g. Motion To Enforce VI caused by the inadequate [HHS ORR] juveniles on the dangerous journey to On November 2, 2018, Plaintiffs filed placement array;’’ and (4) that CBP be the United States and then put them in their sixth motion to enforce, which held in contempt. On June 28, 2019, the further danger by illegally crossing the requests the court to enjoin the Court referred the TRO to an expedited United States border, in the expectation Government from implementing mediation schedule in front of the that coming as a family will result in an regulations that fail to implement the independent monitor. Dkt. 576. On July immediate release into the United FSA. Plaintiffs allege the Government’s 8, 2019, the court appointed a medical States. At the same time, the proposed rulemaking of September 2018 expert, who would ‘‘consult with and alternative—that of separating family is an anticipatory breach of the FSA, assist the [court-appointed independent members so the adult may be detained claiming that DHS’s portion of the monitor] in assessing child health and pending immigration proceedings— proposed regulations proposed to detain safety conditions in [CBP facilities].’’ should be avoided when possible, and accompanied children indefinitely and Dkt. 591. On July 10, 2019, the parties has generated significant litigation. See, consign them to unlicensed family engaged in mediation, and agreed that e.g., Ms. L v. ICE, No. 18–428 (S.D. Cal.). detention centers. Plaintiffs also claim the court-appointed monitor would This final rule serves to clear the way that the proposed rule replaces submit a draft report of findings and for the sensible use of FRCs when it is mandatory protections with aspirational recommendations to the parties and the lawful and appropriate, to allow statements and does not provide certain monitor, and that the parties would custody over a family unit as such. In the protections granted minors. reconvene in mediation following the particular, it creates a Federal licensing Plaintiffs also requested the court to submission of that report. See Joint process to resolve the current problem provisionally adjudicate the Status Report, Dkt. 599. caused by the FSA’s state-licensing Government in civil contempt to make requirement that is ill-suited to family it clear to that implementing the C. Basis and Purpose of Regulatory detention, and allows for compatible Action proposed regulations would place it in treatment of a family unit in contempt. The motion is held in 1. Need for Regulations Implementing immigration custody and proceedings abeyance pending publication of this the Relevant and Substantive Terms of by eliminating artificial barriers to that final rule and further briefing from the the FSA. compatibility imposed by the FSA. parties. When DHS encounters a removable Further, it helps to ensure that decisions alien parent or legal guardian with his to detain a family unit can be made h. Motion To Enforce VII or her removable alien child(ren), it has, under a single legal framework and that On May 30, 2019, Plaintiffs filed a following initiation of removal take into account the interest in family motion to enforce the FSA alleging that proceedings, three primary options for unity. In particular, the rule will ensure HHS’ use of the Homestead influx purposes of immigration custody: (1) that custody decisions for both the shelter facility violates the FSA because Release all family members into the parent and minor will be made pursuant the facility is not licensed, and, in United States; (2) detain the parent(s) or to the existing statutes and regulations Plaintiffs’ opinion, HHS is not releasing legal guardian(s) and either release the governing release on bond or parole (not UACs from the facility as expeditiously juvenile to another parent or legal under a freestanding FSA standard). as possible. By agreement of the parties, guardian or transfer the juvenile to HHS Moreover, when exercising its parole the motion has been referred to as a UAC; or (3) detain the family unit discretion, DHS will continue to mediation with the Monitor in order to together as a family by placing them at consider a detainee’s status as a minor avoid the need for adjudication by the an appropriate FRC during their as a factor in exercising its parole district court. immigration proceedings. The practical discretion, on a case-by-case basis, and implications of the FSA, as interpreted consistent with all requisite statutory i. Ex Parte Request for Temporary by the Federal district court and the and regulatory authority. Restraining Order court of appeals (and the lack of state It is important that family detention On June 26, 2019, Plaintiffs filed an licensing for FRCs), is to prevent the be a viable option not only for the ex parte request for a temporary Government from using the third option numerous benefits that family unity restraining order, which alleged that for more than a limited period of time. provides for both the family and the CBP facilities in the El Paso and Rio This final rule will eliminate that barrier administration of the INA, but also due Grande Valley Border Patrol Sectors to the use of FRCs. to the significant and ongoing surge of violated the terms of the FSA; that CBP DHS believes there are several adults who have made the choice to failed to provide adequate medical care; advantages to maintaining family unity enter the United States illegally with and that CBP failed to comply with the during immigration proceedings. These juveniles or make the dangerous release requirements of Paragraph 14 of include the child being under the care overland journey to the border with the FSA. Plaintiffs requested emergency of the parent, immigration proceedings juveniles, a practice that puts juveniles relief, including (1) immediate occurring together and any removal or at significant risk of harm. The inspection of CBP facilities in the El release occurring at the same time. But expectation that adults with juveniles

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will remain in the United States outside United States. In FY 2013, the total assets/documents/2019-Mar/bp-total- of immigration detention may number of family units apprehended monthly-family-units-sector-fy13- incentivize these risky practices. entering the United States illegally fy18.pdf. By June of 2019, that figure In the summer of 2014, an between ports of entry on the Southwest had increased to 390,308, with an unprecedented number of family units Border was 14,855. By FY 2014, that additional 37,573 found inadmissible at from Central America illegally entered figure had increased to 68,445. See ports of entry. or were found inadmissible to the https://www.cbp.gov/sites/default/files/

TABLE 1—FAMILY UNIT APPREHENSIONS AND INADMISSIBLES AT THE SOUTHWEST BORDER BY FISCAL YEAR 10

Family unit Family units found apprehensions at inadmissible at Fiscal year the Southwest the Southwest Border Border 11

2013 ...... 14,855 ...... 2014 ...... 68,445 ...... 2015 ...... 39,838 ...... 2016 ...... 77,674 26,062 2017 ...... 75,622 29,375 2018 ...... 107,212 53,901 2019 * ...... 390,308 37,573 * Partial year data for FY 2019; through June.

Prior to 2014, given the highly limited available to the Government for the DHS officials faced an urgent detention capacity, the only option large majority of family units entering humanitarian situation. DHS the United States was to issue the family encountered numerous alien families 10 Note that Family Unit represents the number of Notices to Appear and release the alien and juveniles who were hungry, thirsty, individuals (either a child under 18 years old, family to temporarily remain in the exhausted, scared, vulnerable, and at parent or legal guardian) apprehended with a family United States pending their removal member. See United States Border Patrol Total times in need of medical attention, with Family Unit Apprehensions By Month—FY 2013 proceedings. Thus, when an some also having been beaten, starved, through FY 2018 at https://www.cbp.gov/sites/ unprecedented number of families sexually assaulted or worse during their default/files/assets/documents/2019-Mar/bp-total- decided to undertake the dangerous journey to the United States. monthly-family-units-sector-fy13-fy18.pdf (last journey to the United States in 2014, visited May 10, 2019) See also U.S. Border Patrol DHS mounted a multi-pronged Southwest Border Apprehensions by Sector Fiscal response to this situation. As one part Year 2019 at https://www.cbp.gov/newsroom/stats/ www.cbp.gov/newsroom/stats/sw-border-migration of this response, DHS placed more sw-border-migration/usbp-sw-border- (last visited August 5, 2019). apprehensions# (last visited August 5, 2019) See 11 OFO did not start tracking family units until families at the one existing FRC, stood also Southwest Border Migration FY 2019 at https:// March of 2016. up another FRC (which was later closed

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down), and oversaw the development of guardian, FSA paragraph 14, suggesting from the Federal Government), DHS’s additional FRCs to detain family units an underlying assumption that the ability to effectively use family together, in a safe and humane minor is not already together with the detention is unduly limited. A Federal environment, during the pendency of parent as a family; the FSA indicates program (especially immigration their immigration proceedings, which that the purpose of the release ‘‘to’’ enforcement) that the Constitution and typically involved expedited removal. another relative is to promote ‘‘family Congress commit to Federal authority Although it is difficult to definitively reunification,’’ which makes little sense and discretion should not depend on prove a causal link given the many if the family is already together as a state licensing. And that is particularly factors that influence migration, DHS’s unit, id.; the FSA generally requires true when a well-established state- assessment is that this change was one custody to occur in a facility ‘‘licensed licensing process does not already exist factor that helped stem the border crisis, by an appropriate State agency,’’ FSA and the FSA, as the Ninth Circuit as it correlated with a significant drop paragraph 6, but no State in the country pointed out, ‘‘gave inadequate attention in family migration: Family unit had at the time an agency that would to some problems of accompanied apprehensions on the Southwest Border license facilities for holding families minors’’ and ‘‘does not contain dropped from 68,445 in FY 2014 to together in custody as a unit. The standards related to the detention of 39,838 in FY 2015. government used FRCs for more than 10 . . . family units.’’ Flores, 828 F.3d at Although the border crisis prompted years—from 2001, when it first used the 906. In order to avoid separating family DHS to increase its use of FRCs to hold Berks facility to hold families in custody units, DHS must release adult family family units together, DHS quickly faced until 2014—with the class counsel’s members in cases where detention legal challenges asserting that the FSA knowledge, and without the government would otherwise be mandatory and DHS applied to accompanied minors and that ever considering that the FSA applied to determines parole is not appropriate, or family detention did not comply with minors accompanied by their parents. in cases where DHS and/or immigration the provisions of the FSA. In July 2015, The FSA requires DHS to transfer courts believe detention of the parent is the Flores court rejected the minors to a non-secure, licensed facility needed to ensure appearance at future Government’s position that the FRCs ‘‘as expeditiously as possible,’’ and removal proceedings or to prevent comply with the FSA and declined to further provides that a ‘‘licensed’’ danger to the community.13 Because of modify the FSA to allow DHS to address facility is one that is ‘‘licensed by a ongoing litigation concerning state this significant influx of family units State agency.’’ FSA paragraphs 6, 12(A). licensure for FRCs, ICE must release crossing the border and permit family That prompted significant and ongoing minors who are a part of family units as detention. See Flores v. Lynch, 828 F.3d litigation regarding the ability to obtain expeditiously as possible, which means 898, 909–10 (9th Cir. 2016). The state licensing of FRCs, as many States that ICE rarely is able to hold family Government had explained to the did not have, and have not succeeded in units for longer than approximately 20 district court that declining to modify putting in place, licensing schemes days. As such, of the 107,212 FY 2018 the FSA as requested would ‘‘mak[e] it governing facilities that hold family family unit apprehensions at the impossible for ICE to house families at units together. That litigation severely Southwest border, 45,755 individuals ICE [FRCs], and to instead require ICE limited the ability to maintain detention were booked into FRCs in FY 2018. The to separate accompanied children from of families together. Those limitations result is that many families are released their parents or legal guardians.’’ Flores correlated with a sharp increase in in the interior of the United States, even v. Lynch, No. 85–4544, Defendants’ family migration: The number of family in cases when DHS or immigration Opposition to Motion to Enforce, ECF units apprehended by CBP between the courts deem detention is needed to 121 at 17 (C.D. Cal. Feb. 27, 2015). ports of entry along the Southwest effectuate removal proceedings or even When the courts then found the FSA Border again spiked—from 39,838 in FY when there are safety concerns. to apply to accompanied minors—an 2015 to the highest level ever up until According to EOIR, 43 percent of interpretation with which the that time, 77,674 in FY 2016. In FY cases completed from January 1, 2014 Government continues to disagree—the 2016, CBP also found 26,062 family through March 31, 2019 involving agencies faced new practical problems. units inadmissible at ports of entry family unit aliens who were in Indeed, the government has never along the Southwest Border. The detention, released, failed to appear at understood the FSA to apply to number of such apprehensions and the required proceedings, and were accompanied minors. The Supreme individuals found inadmissible along issued final orders of removal in Court in Flores understood the case to the Southwest Border has continued to absentia.14 involve ‘‘the constitutionality of rise, and reached 107,212 institutional custody over apprehensions between the ports of 13 Current regulations address parole, including for juveniles in custody as well as parole for aliens unaccompanied juveniles.’’ 507 U.S. at entry, and 53,901 family units found 305; see id. at 315 (‘‘[T]he INS policy subject to expedited removal. See 8 CFR 212.5(b)(3) inadmissible at ports of entry in FY (parole for juveniles); 8 CFR 235.3(b)(2)(iii), now in place is a reasonable response to 2018. In the first nine months of FY (b)(4)(ii) (limiting parole for those in expedited the difficult problems presented when removal proceedings). While DHS is amending 2019 (through June 30, 2019), the § 212.5(b) as a part of this regulation, this regulation the Service arrests unaccompanied alien number of family unit apprehensions juveniles.’’). is not intended to address or alter the standards has already reached 390,308, a 469 contained in § 212.5(b) or § 235.3(b). To the extent The FSA in turn has FSA has no percent increase from the same period that paragraph 14 of the FSA has been interpreted language directly addressing the specific in FY 2018. During this same time to require application of the juvenile parole issues raised by custody over families as regulation to release during expedited removal period, 37,573 family units have been a unit. The FSA explains that the proceedings, see Flores v. Sessions, Order at 23–27 found inadmissible at ports of entry (June 27, 2017), this regulation is intended to settlement arose from a lawsuit about along the Southwest Border.12 permit detention in FRCs in lieu of release (except ‘‘detention and release of As long as the licensing must come where parole is appropriate under 8 CFR unaccompanied minors,’’ FSA 235.3(b)(2)(iii) or (b)(4)(ii)) in order to avoid the from a State specifically (rather than paragraph 1 (emphasis added); it need to separate or release families in these circumstances. provides for the INS to make efforts at 12 See Southwest Border Migration FY 2019, 14 Of the 5,326 completed cases from January 1, releasing a minor ‘‘to’’ a parent or https://www.cbp.gov/newsroom/stats/sw-border- 2014 through March 31, 2019 that started at an FRC, guardian, not ‘‘with’’ a parent or migration. Continued

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Table 3 below reports DHS Office of ordered removed in absentia. In affected by that bias. However, this Immigration Statistics (OIS) data on in absentia as a percent of all completed statistic is biased downward (i.e., tends absentia rates for aliens encountered at cases is biased upward (i.e., tends to to be lower than the true in absentia the Southwest Border by year of their overestimate the true in absentia rate), rate), because it does not account for initial enforcement encounter. For each especially for more recent fiscal years, cases still in proceedings—again, more of these initial encounter cohorts, the because in absentia cases may take less than half the cases—that may eventually table reports on the number of aliens time to complete cases with other types result in an in absentia order. The referred to EOIR, the number of EOIR of final outcomes. The in absentia rates ‘‘true’’ in absentia rate for encounters in cases completed (i.e. excluding cases for people encountered in earlier years, any given fiscal year can’t be observed that are still in proceedings), and the such as FY 2014 and FY 2015, may be until all the cases from that year are number of EOIR in absentia orders somewhat more meaningful than for completed, at which time the two issued, as of the end of FY 2018. The those encountered more recently statistics will be the same number. As bottom rows of the table show both the because the longer-standing cases have in absentia rate as a percentage of all been working their way through seen in Table 3, DHS OIS has found that referrals to EOIR, and as a percentage of proceedings for four to five years; but, when looking at all family unit aliens all completed cases. DHS reports both more than half the cases remain in encountered at the Southwest Border statistics because DHS is aware that proceedings even for this longer- from FY 2014 through FY 2018, the in both indicators are biased indicators of standing group. Viewing in absentia as absentia rate for completed cases as of the ‘‘true’’ rate at which people are a share of all referrals to EOIR is not the end of FY 2018 was 66 percent.

Based on the similar timeframes of the not start their cases in FRCs have a may or may not have an impact the two rates from EOIR and DHS OIS, DHS higher in absentia rate. However, this likelihood of appearance, such as can assume that family units who did does not account for other factors that enrollment in a monitoring program or

2,281 were issued final orders of removal in apprehensions beginning in FY 2014, and available (NTAs), ERO NTAs, positive USCIS fear absentia. for OFO encounters with inadmissible aliens determinations and negative USCIS fear 15 DHS OIS estimates the in absentia rate by beginning in FY 2016. Family unit data are determinations vacated by EOIR, and any other available for USBP apprehensions beginning in FY linking DHS and DOJ/EOIR records at the person- DHS NTAs reported by EOIR. Completed EOIR 2014, and available for OFO encounters with cases include EOIR removal orders/grants of level as part of OIS’ Enforcement Lifecycle analysis. inadmissible aliens beginning in FY 2016. DHS Family unit data are available for USBP referrals to EOIR include CBP Notices to Appear voluntary departure and grants of relief.

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access to representation. However, DHS ensure appropriate standards of care all aliens (not just family units) who still concludes that the in absentia rates consistent with the terms of the FSA were encountered by DHS from FY 2014 of family units even who started their would enable DHS to ensure family through FY 2018 and ordered removed, cases at an FRC is a serious concern, units who are identified as flight risks if they have been removed or not and flight risk can warrant detention appear at removal proceedings and for removed as of the end of FY 2018, and throughout proceedings. Statistics that removal following the issuance of a final if they were detained or not detained at purport to show lower in absentia rates order. the time the removal order was issued. often count all court appearances, rather ICE’s mission is to remove individuals As shown in the table, detaining a than only completed cases, thus subject to final orders of removal. DHS person until the time of removal counting multiple times aliens who OIS data show that, as of the end of FY correlates strongly with the likelihood appear for multiple court appearances 2018, aliens encountered from FY 2014 that removal will be effectuated. ICE has and often not counting the time when through FY 2018 and detained at the finite resources and bed space at FRCs being absent is most likely—at hearings time a final order of removal was issued, and this rule would provide DHS the where proceedings are completed and were removed at a much higher rate ability to use its detention authority and likely to result in a removal order. than those not detained: 97 percent of existing space at FRCs where lawful and Addressing DHS’s ability to effectively aliens detained as compared to just over appropriate to effectuate removal of use family detention through an 18 percent of individuals not detained. family units determined not to be alternative licensing that will help See Table 4 below. The table reports for eligible for relief.

As described above, there have been through Federal licensing of FRCs, will changed since the FSA was entered into several important changes in law and provide the flexibility necessary to and agency expertise in addressing circumstance since the FSA was protect the public safety, enforce the current circumstances, the rule does not executed: (1) A significantly changed immigration laws, and maintain family always track the literal text of the FSA, agency structure addressing the care and unity given current challenges that did but provides similar substantive custody of juveniles, including the not exist when the FSA was executed. protections to juveniles. For example, development of FRCs that can provide This rule provides DHS the option of the rule allows for detention of families appropriate treatment for minors while keeping together families who must or together in federally-licensed programs allowing them to be held together with should be detained at appropriately (rather than facilities licensed their families; (2) a new statutory licensed FRCs for the time needed to specifically by a State). States generally framework that governs the treatment of complete immigration proceedings, do not have licensing schemes that UACs; (3) significant increases in the subject to the sound implementation of apply to FRCs. Thus, the terms of the number of families and UACs crossing existing statutes and regulations FSA currently impose a limitation on the border since 1997, thus affecting governing release on parole or bond. DHS’s ability to detain family units immigration enforcement priorities and national security; (4) a novel judicial 2. Purpose of the Regulations together in an FRC during their interpretation that the FSA applies to A principal purpose of this action is immigration proceedings, consistent accompanied minors; and (5) further to implement the relevant and with applicable law. The Federal recognition of the importance of keeping substantive terms of the FSA and licensing process in turn will provide families together during immigration provisions of the HSA and TVPRA similar substantive protections proceedings when appropriate, and the where they necessarily intersect with regarding the conditions of such legal and practical implications of not the FSA’s provisions, and taking into facilities, and thus implement the providing uniform proceedings for account the agencies’ expertise in underlying purpose of the state- family units in these circumstances. The addressing current factual licensing requirement. These changes Departments have thus determined that circumstances, thereby terminating the will allow for release in a manner it is necessary to put into place FSA, as provided for in FSA paragraph consistent with the INA and applicable regulations that will be consistent with 40 as well as general principles regulations. The rule also provides for the relevant and substantive terms of the governing termination of settlements or third-party monitoring, and for FSA regarding the conditions for decrees in institutional litigation. As it publicizing the results of those custodial settings for minors, but, accounts for circumstances that have inspections, to ensure that conditions

16 DHS OIS.

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on the ground in FRCs satisfy those custody determination), but simply to term with ‘‘intellectual disability.’’ HHS standards. shift review from DOJ to HHS given that likewise agrees to use ‘‘intellectual This rule conforms to the FSA’s Congress has made HHS responsible for disability’’ in the corresponding guiding principle that the Government custody and care of UACs. definition of Special Needs Minor at treats, and shall continue to treat, all Finally, this rule excludes those § 410.101. juveniles in its custody with dignity, provisions of the FSA that are relevant • Section 236.3(b)(9), which defines respect, and special concern for their solely by virtue of the FSA’s existence Licensed Facility, requires DHS to particular vulnerability as minors. as a settlement agreement. For instance, employ third parties to conduct audits The current DHS regulations on the the FSA contains a number of of FRCs to ensure compliance with detention and release of aliens under provisions that relate specifically to family residential standards. the age of 18 found at 8 CFR 236.3 have class counsel and the supervising court Commenters stated that DHS has not been substantively updated since with respect to the Departments’ previously not shared the results of such their promulgation in 1988.17 DHS compliance with the FSA. Following audits. While ICE has publicly posted therefore is revising 8 CFR 236.3 to termination of the FSA, such provisions the results of facility inspection reports promulgate the relevant and substantive will no longer be necessary, because submitted by third-party contractors terms of the FSA as regulations. In compliance with the published since May 2018, these posts have not addition, there are currently no HHS regulations will replace compliance included results of FRC inspections. To regulations on this topic. HHS is with the settlement agreement. As a directly address the comment, the promulgating a new 45 CFR part 410 for result, they are not included in this phrase ‘‘DHS will make the results of the same reason. rule.19 these audits publicly available’’ is added to the definition. DHS also adds As noted, these regulations D. Severability implement the relevant and substantive to the final rule that the audits of To the extent that any portion of this terms of the FSA and related statutory licensed facilities will take place at the final rule is declared invalid by a court, provisions. Separate from the FSA, DHS opening of a facility and take place on the Departments intend for all other has over time developed various an ongoing basis. parts of the final rule that are capable of • policies and other sub-regulatory In § 236.3(b)(11), which defines a operating in the absence of the specific documents that address issues related to Non-Secure Facility, DHS agrees with portion that has been invalidated to DHS custody of minor aliens and commenters that a non-secure facility remain in effect. Thus, even if a court UACs.18 In considering these means a facility that meets the decision invalidating a portion of this regulations, DHS reviewed such definition of non-secure under state law final rule results in a partial reversion policies, and determined that these in the State in which the facility is to the current regulations or to the located, as was intended by the regulations are compatible with them. statutory language itself, the language of the proposed rule, and is Current policies on the custody, Departments intend that the rest of the adding ‘‘under state law’’ to the apprehension, and transportation of final rule continue to operate, if at all definition to clarify this point. minors and UACs generally would not, possible in tandem with the reverted • In § 236.3(f)(1) regarding transfer of therefore, need to be altered to bring provisions. UACs from DHS to HHS, DHS agrees to them into conformity with this rule. amend the proposed regulatory text to IV. Summary of Changes in the Final This rule is not, however, intended to clarify that a UAC from a contiguous Rule displace or otherwise codify such country who is not permitted to policies and procedures. Similarly, the Following careful consideration of withdraw his or her application for rule is consistent with and does not public comments received and relevant admission, or if no determination can be abrogate existing ORR policies and data provided by stakeholders, DHS and made within 48 hours of apprehension procedures; nor does it necessitate any HHS have amended the regulatory text or encounter, will be immediately alteration in those policies and proposed in the NPRM published in the transferred to HHS. The Departments procedures, except in regards to the Federal Register on September 7, 2018. believe that commenters misunderstood transfer of bond redetermination As discussed elsewhere in this the intent of the regulatory text due to hearings from immigration courts to the preamble, these changes in this final imprecise wording, which is now HHS hearing officer as found at 8 CFR rule include the following: clarified by deleting ‘‘subject to the • 410.810. Again, however, the idea is for Section 212.5(b) now considers that terms of’’ and replacing with ‘‘processed the UAC to enjoy the same basic DHS is not precluded from releasing a in accordance with.’’ substantive protection (review of the minor who is not a UAC to someone • In § 236.3(f)(4)(i) regarding the other than a parent or legal guardian, transportation of UACs, DHS is 17 See Detention and Release of Juveniles, 53 FR specifically a brother, sister, aunt, uncle, amending the regulatory text to make it 17449 (May 17, 1988). When published as a final or grandparent who is not in detention. clear that, as a general matter, UACs are rule, the provisions applying to the detention and • release of juveniles were originally placed in 8 CFR Section 236.3(b)(2) defines Special not transported with unrelated detained 242.24. After Congress passed IIRIRA, the former Needs Minor and includes the term adults. The two situations described in INS published a final rule updating several ‘‘retardation,’’ which commenters noted the regulatory text are limited immigration-related provisions of the CFR and was an outdated term and should be moved these provisions from § 242.24 of title 8 to exceptions to this general rule. DHS is § 236.3. See Inspection and Expedited Removal of removed. DHS agrees to replace that adding the specific reference to Aliens; Detention and Removal of Aliens; Conduct unrelated ‘‘detained’’ adults, for clarity. of Removal Proceedings; Asylum Proceedings, 62 19 For instance, paragraphs 32(A), (B), and (D), • In § 236.3(g)(1)(i) regarding DHS FR 10312 (Mar. 6, 1997). and 33 of the FSA grants Flores class counsel 18 See, e.g., ICE, Family Residential Standards, special access to covered minors and UACs and to procedures in the apprehension and https://www.ice.gov/detention-standards/family- certain facilities that hold such minors and UACs; processing of minors or UACs, Notice of residential (last visited May 1, 2019); CBP, National it is unnecessary to codify these provisions in Rights and Request for Disposition, DHS Standards on Transport, Escort, Detention, and regulation. Similarly, paragraphs 29 to 31 include is removing the qualification that the Search (Oct. 2015), https://www.cbp.gov/sites/ special reporting requirements with respect to class default/files/assets/documents/2017-Sep/CBP counsel and the supervising court; reporting to notice will be read and explained when %20TEDS%20Policy%20Oct2015.pdf (last visited these entities would be unnecessary following the minor or UAC is believed to be less May 1, 2019). termination of the FSA. than 14 years of age or is unable to

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comprehend the information contained ‘‘. . . or a State or county juvenile expedited removal proceedings who in the Form I–770, and is clarifying that detention facility.’’ lack a credible fear (or have not yet been the notice will be provided, read, or • In § 410.202, in response to found to have a credible fear) apply both explained to all minors and UACs in a commenters’ concerns, HHS clarifies to adults and minors. Accordingly, such language and manner that they that ORR places UACs in licensed minors will be paroled only in cases of understand. DHS is making this change programs except if a reasonable person medical necessity or when there is a law to avoid confusion related to DHS’s would conclude, ‘‘based on the totality enforcement need. This is the same legal obligations regarding this notice, of the evidence and in accordance with standard that applies to adults in these while still acknowledging that it may be subpart G’’ that the UAC is an adult. same circumstances. These proposed necessary to implement slightly • In § 410.203, in response to changes also eliminate an existing different procedures depending on the commenters’ concerns, HHS clarifies tension with the text of the relevant particular minor or UAC’s age and other that it reviews placements of UACs in statutory provision. characteristics. secure facilities at least monthly and Public Comments and Responses • In § 236.3(g)(2)(i) regarding DHS that the rule does not abrogate any custodial care immediately following requirements that ORR place UACs in One commenter stated that it agreed apprehension, the proposed regulatory the least restrictive setting appropriate with the determination that parole text stated that UACs ‘‘may be housed to their age and any special needs. should be limited to cases of medical with an unrelated adult for no more • In § 410.302(a), in response to necessity or law enforcement need and than 24 hours except in the case of an commenters’ concerns, HHS clarifies that parole must be within the emergency or exigent circumstances.’’ that the licensed program providing care discretion of DHS. Many commenters, Commenters objected to the use of the for a UAC shall make continual efforts however, disagreed with the proposal term ‘‘exigent circumstances’’ as it was at family reunification as long as the and expressed concern about more not defined. DHS agrees to delete the UAC is in the care of the licensed restrictive parole standards, the impact term ‘‘exigent circumstances’’ as it is program. on asylum seekers, and questioned the redundant to ‘‘emergency.’’ • In § 410.600(a) regarding transfer of necessity for the proposed changes • In § 236.3(i)(4), commenters UAC, the proposed regulatory text states given existing discretionary parole requested additional language tracking that, ‘‘ORR takes all necessary authority. the verbatim text of FSA Ex. 1. In precautions for the protection of UACs Limiting Parole to Medical Necessity or response to these comments, DHS added during transportation with adults.’’ Law Enforcement Need language of FSA Ex. 1 paragraph. However, as ORR does not transport • Section 236.3(j) and (n) now Comments. Several commenters adult aliens, HHS has decided to strike stated that the proposed parole consider that DHS is not precluded from this language from the final rule. releasing a minor who is not a UAC to • standards are restrictive and will In § 410.700 HHS is adding the unnecessarily prevent the release of someone other than a parent or legal ‘‘totality of the evidence and guardian, specifically a brother, sister, children who pose no flight or safety circumstances’’ for age determinations risk. Most of these commenters aunt, uncle, or grandparent who is not standards to mirror the DHS standard in in detention and is otherwise available expressed concern that the removal of compliance with statute. See 8 U.S.C. the cross-reference to § 235.3(b) allows to provide care and physical custody. 1232(b)(4). • DHS has added a new § 236.3(j)(4) for children to only be paroled if there • In § 410.810(b), HHS declines to to state clearly that the Department will is a ‘‘medical necessity or law place the burden of evidence in the consider parole for all minors who are enforcement need,’’ whereas the FSA independent internal custody hearings detained pursuant to section allows children to be paroled when on itself; however, it has modified the 235(b)(1)(B)(ii) of the INA or 8 CFR there is an ‘‘urgent humanitarian need rule text to indicate that HHS does bear 235.3(c) and that paroling such minors or significant public benefit.’’ Some of the initial burden of production who do not present a safety risk or risk these commenters stated that this supporting its determination that a UAC of absconding will generally serve an limitation fails to consider the particular would pose a danger or flight risk if urgent humanitarian reason. DHS will vulnerability of children as required by discharged from HHS’ care. The UAC also consider aggregate and historical the FSA and is unnecessary due to the must bear the burden of persuading the data, officer experience, statistical already high standard for the limited independent hearing officer to overrule information, or any other probative number of children who would qualify the government’s position, under a information in determining the for parole under the prior standards. preponderance of the evidence detention of a minor. Multiple commenters stated that standard. • Section 236.3(o) is amended to children with urgent humanitarian clarify that the Juvenile Coordinator’s V. Discussion of Public Comments and needs such as pregnant young women duty to collect statistics is in addition to Responses and children with physical disabilities, the requirement to monitor compliance cognitive impairments, or chronic A. Section-by-Section Discussion of the with the terms of the regulations. medical conditions would likely no • In § 410.101, HHS agrees to amend DHS Proposed Rule, Public Comments, longer qualify for parole under the the definition of ‘‘special needs minor,’’ and the Final Rule proposed regulations and the medical replacing the term ‘‘retardation’’ with 1. Parole (§ 212.5) emergency standard. ‘‘intellectual disability.’’ A few commenters stated that DHS • In § 410.201(e), HHS agrees with Summary of Proposed Rule should continue the general policy to multiple legal advocacy organizations’ In § 212.5(b), DHS proposed to prioritize parole to ensure the best analysis that the FSA and TVPRA run remove the cross-reference to § 235.3(b) interests of minors and their placement in contradiction to each other in placing as it currently appears in order to in the least restrictive setting UACs in secure facilities based solely on eliminate an ambiguity and to codify its appropriate. Another commenter stated the lack of appropriate licensed program longstanding understanding of how that the proposed regulations should be availability; therefore, ORR is striking certain provisions in § 235.3(b)’s withdrawn and asked the following the following clause from this section: provisions relating to parole of aliens in questions: (i) How large was the

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population of minors who were in discretion to apply a new narrow change as ‘‘severely restrict[ing]’’ parole detention under § 235.3(c) and who standard, leaving survivors of sexual for these individuals, stated that DHS’s were released on parole under § 212.5(b) violence and other forms of trauma with claim that this change is intended by on a yearly basis for the past five years; minimal hope of release pending a Congress is ‘‘belied’’ by INA (ii) why is § 212.5(b) inappropriate for lengthy adjudication of their complex, 212(d)(5)(A), wherein Congress minors in removal proceedings under evidence-driven asylum claims. A authorized discretionary parole on a § 235.3(c); and (iii) why should different commenter stated that the case-by-case basis for urgent accompanied minors not be permitted to proposed rule uses the detention of humanitarian reasons or significant be paroled on a case-by-case basis for an children to disincentivize asylum public benefit. urgent humanitarian reason or a seekers from going forward with their General Opposition to Proposed significant public benefit? asylum claims and that the changes will Changes Fewer Minors Paroled make it more difficult for certain vulnerable children and families in DHS Several commenters objected to any Multiple commenters stated that the custody to be paroled as they await an attempt to curtail parole in the name of proposed changes will result in children assessment of whether they have a family unity, contending that detention facing the same parole standards as credible fear of persecution. significantly harms children. Another adults and thereby being paroled less commenter, perceived that this rule Existing Discretionary Parole Authority frequently. One of these commenters would limit opportunities for minors to expressed concern that this would likely Other commenters pointed to existing be released from detention and asserted mean children will be detained beyond that the Administration should make the 20 days that is generally the current discretionary parole authority and questioned the necessity of the every effort to ensure that children, and practice permitted under the FSA. as applicable, children with families, Another commenter stated that while proposed changes. One commenter likened the choice between detention spend as little time in detention as the NPRM states that proposed § 236.3(j) possible. This commenter stated that, in ‘‘adds that any decision to release must and parole for children to the choice between incarcerating a minor or the case of a minor who is traveling follow a determination that such release with a family member, absent an is permitted by law, including parole releasing them on probation, contending that detention alternatives are healthier indication of trafficking or unfitness on regulations,’’ it does nothing to specify the part of the relative, it is in the best DHS parole procedures favoring the for children and avoid expenses. interest of the child to be paroled from release of children, which the Another commenter contended that ICE detention with the relative. A different commenter contended was required by has the discretion to release on parole commenter requested that the final rule the FSA. and that the new regulations place no meaningful limit on the ability of ICE to provide that all minors are bond and Impact on Asylum Seekers detain families during their parole eligible. Multiple commenters expressed proceedings. This commenter stated that Response. For more general concerns concern about how the proposed DHS’s proposed regulations provided no about the release of minors from DHS changes to parole would impact asylum review of a parole denial, and that the custody, see the discussion under seekers. One of these commenters stated Attorney General indicated his intention § 236.3(j). For concerns about the that the proposed rule provides no to review and possibly reverse the long- negative effects of detention, see the explanation for eliminating DHS’s standing precedent providing for discussion under § 236.3(h) regarding authority to consider unique individualized ICE custody detention of family units. circumstances that may arise for determinations with review in DHS provides the following counts of children seeking asylum. Another immigration court for asylum seekers adults and minors who were released commenter stated that asylum who have passed a credible fear from FRCs on parole in FY 2014 through applicants in detention have historically interview.20 The commenter urged that 2018 in response to comments. There had an opportunity to be released children and families be given a are also other means to effectuate through parole provisions, and meaningful ability to seek redress of release. See Table 10 for Average Length contended that the proposed parole detention after a parole denial. Still of Stay and Table 11 for reasons for standards would afford DHS broad another commenter, characterizing the release.

DHS notes that the changes under this intended not to foreclose the possibility the provisions in § 235.3(b) governing provision are limited in scope and of a minor’s release, but to clarify that the parole of aliens in expedited

20 The Attorney General has since done so, in Matter of M–S, 27 I&N Dec. 509 (A.G. 2019).

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removal (specifically those pending a flexible standard of parole for arriving 2. Definitions § 236.3(b) credible fear interview or ordered aliens (‘‘urgent humanitarian reasons or Minor § 236.3(b)(1) and Unaccompanied removed in the expedited removal significant public benefit’’) placed in Alien Child (UAC) § 236.3(b)(3) process) apply to all such aliens, and section 240 proceedings to minors not merely adults. Parole of minors will placed in expedited removal, rather Summary of Proposed Rule be applied in accordance with than the standards generally applicable DHS proposed revisions to applicable law, regulations, and to all aliens placed in expedited § 236.3(b)(1) to define a minor as any policies, and DHS will consider parole removal who have yet to have a credible alien under 18 years of age who has not for all minors in its custody who are fear interview or who have been ordered been emancipated or incarcerated for an eligible. The current cross-reference to removed (‘‘required to meet a medical adult criminal offense. DHS proposed to § 235.3(b) within § 212.5(b) is confusing emergency or is necessary for a remove the definition of juvenile as it is because it suggests, incorrectly, that the legitimate law enforcement objective’’). too broad and replace it with the more more flexible parole standards in specific terms minor and UAC. The § 212.5(b) might, for minors, override The Attorney General’s recent difference between minor and UAC is the provisions in § 235.3(b) that govern decision in Matter of M-S, 27 I&N Dec. that the term ‘‘minor’’ captures any parole for any alien in expedited 509 (A.G. 2019), does not affect the alien under the age of 18 that is not removal proceedings (i.e., an alien who parole standard applicable to the narrow defined as a UAC, for example, minors has been ordered removed or is still category of aliens to whom the accompanied by their parents. Also, pending a credible-fear determination). amendments to § 212.5(b) apply— under these definitions, a ‘‘minor’’ See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). DHS specifically, aliens who are pending a cannot be legally emancipated or have disagrees with that interpretation of its credible fear interview or who have been incarcerated due to an adult current regulations, which, among other been ordered removed through the conviction, whereas the definition of things, is in tension with the text of the expedited removal process. In Matter of UAC does not exclude these categories. relevant statutory provisions at 8 U.S.C. M-S-, the Attorney General’s decision Public Comments and Response 1225(b)(1)(B)(iii)(IV) (‘‘Any alien subject addressed aliens who enter the United Comments. One commenter stated to [expedited removal] shall be detained States between the ports of entry, are that it was inconsistent with the FSA to pending a final determination of processed for expedited removal, and credible fear of persecution and, if delete the definition of ‘‘juvenile’’ and are then placed into removal replace it with separate definitions for found not to have such a fear, until proceedings pursuant to INA 240 after removed.’’). By its terms, § 235.3(c) ‘‘minor’’ and ‘‘UAC,’’ thereby requiring establishing a credible fear. Matter of M- different treatment between juveniles applies only to arriving aliens who are S-, 27 I&N Dec. 509. Those aliens, he placed into section 240 proceedings. who are accompanied by their parent or concluded, are ineligible for release on Many of the comments on the legal guardians, and juveniles who are bond under INA 236(a) and may only be proposal—for example, those urging not. The commenter noted that although DHS to adopt a more flexible parole released from DHS custody through UACs must be transferred to ORR standard or a general practice of parole under INA 212(d)(5). Id. But that custody within 72 hours of paroling alien juveniles—largely is a different category of aliens and the apprehension, juveniles who did not amount to disagreement with DHS’s proposal here would do nothing to alter meet this definition would not be legal interpretation of INA the standards governing the detention or transferred. The commenter also noted 235(b)(1)(B)(iii)(IV), set out in the release of those aliens. DHS will that under the NPRM, minors could be preamble of the NPRM, see 83 FR at continue to apply its parole authority in released only to a parent or legal 45502. But DHS is not persuaded that these cases in accordance with guardian, whereas, the commenter contended, the FSA requires the release this legal interpretation is erroneous. applicable law, regulations, and of all children to the least restrictive Moreover, the FSA does not specifically policies. DHS also declines to adopt placement. The commenter concluded discuss parole, much less require parole commenters’ suggestions that DHS that adopting the two definitions would for urgent humanitarian reasons or codify a review process for denials of conflict with the FSA, which does not significant public benefit. While the parole, which has never existed, given draw any distinctions between juveniles FSA expresses a preference for release that the decision to grant parole is in ORR custody and juveniles in DHS for juveniles, it does not require release entirely discretionary. However, as custody. in all cases, and explicitly does not previously explained, DHS’s current bed Response. DHS disagrees that provide a specific standard for such space at FRCs necessarily limits the replacing the term juvenile with a release decisions. number of family units who could be definition for minor and a definition for DHS notes that many commenters detained at any given time. UAC is inconsistent with the FSA or appeared to confuse the proposed creates an improper distinction. The Changes to Final Rule changes with changes that would be term ‘‘juvenile’’ originates not in the much broader in scope; for example, by Accordingly, DHS is finalizing its FSA, which did not use or define the eliminating from § 212.5(b) entire regulation at 8 CFR 212.5(b) as proposed term, but in existing DHS regulations. groups of aliens who have been or are but is adding language to permit release These regulations have not been detained from receiving case-by-case of a minor to someone other than a updated since 1988 and do not reflect parole determinations and eliminating either the provisions of the FSA or any parent or legal guardian, specifically an completely the ‘‘urgent humanitarian developments in law since that time. adult relative (brother, sister, aunt, reasons’’ or ‘‘significant public benefit’’ Accordingly, in updating the regulations justifications. As the regulatory uncle, or grandparent) not in detention. to implement the FSA, DHS has adopted language in the revised § 212.5(b) The reason for this change is explained the same definition of ‘‘minor’’ as used indicates, this is not the case. The intent in the section below regarding in the FSA. Additionally, DHS has of these provisions is only to remove the comments on proposed 8 CFR 236.3(j). included the term UAC, as that term is ambiguity in the current regulations that defined in the HSA. Pursuant to the appears to erroneously apply the more HSA and the TVPRA, ORR is

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responsible only for the care and Response. The regulatory language Public Comments and Response custody of UACs. See 6 U.S.C. 279(b)(1); adopted the same definition of ‘‘special The comments received are discussed 8 U.S.C. 1232(b)(1). Because the HSA needs’’ as the definition used in the above in conjunction with the definition and the TVPRA specifically define FSA. This definition includes any minor of ‘‘minor.’’ UACs and impose certain requirements whose mental condition requires special related only to UACs, the regulatory text services and treatment as identified Changes to Final Rule must be able to distinguish between during an individualized needs DHS declines to change the proposed UACs and minors who do not meet the assessment. DHS disagrees that the definition of UAC in response to public UAC definition. The term juvenile is too definition should be expanded because comments. broad to provide a meaningful the definition is broad enough to definition and does not track the include minors with developmental and Custody § 236.3(b)(4) language of the FSA. learning disabilities, if the special needs Summary of Proposed Rule Changes to Final Rule assessment determines that these The term custody is not defined in the conditions require special services and FSA. DHS has defined custody as the DHS finalizes its definitions of minor treatment. and UAC as proposed and declines to physical and legal control of an The proposed regulatory language institution or person. make changes in response to public contains multiple provisions requiring comments. DHS and HHS to consider a minor or Public Comments and Response Special Needs Minor § 236.3(b)(2) UAC’s special needs, including DHS did not receive any comments provisions requiring consideration of Summary of Proposed Rule requesting a change to this definition. special needs when determining DHS did not propose any revisions to placement. For example, 45 CFR Changes to Final Rule the FSA for the definition of special 410.208 states that ORR will assess each DHS is not making changes from the needs minor. Special needs minor is UAC to determine if he or she has proposed definition of custody in the defined as any minor with physical special needs and will, whenever final rule. disabilities, cognitive impairments or possible, place a UAC with special chronic medical conditions that was needs in a licensed program that Emergency § 236.3(b)(5) identified in the individualized needs provides services and treatment for the Summary of Proposed Rule assessment. UAC’s special needs. Title 8 CFR DHS proposed revisions to Public Comments and Response 236.3(g)(2) requires DHS to place minors § 236.3(b)(5) to define emergency as an and UACs in the least restrictive setting act or an event that prevents timely Comments. Some commenters asked appropriate to the minor or UAC’s age for expanded definitions of ‘‘special transport or placement of a minor, or and special needs. Title 8 CFR could delay compliance with or needs minor’’ or additional provisions 236.3(i)(4) requires that facilities relating thereto. One commenter stated temporarily excuse compliance with conduct a needs assessment for each the definition should be broadened to other provisions of the proposed rule. minor, which would include both an include developmental disability and As discussed in the preamble to the educational assessment and a special learning disability. The commenter proposed rule, the new definition of needs assessment. Additionally, 8 CFR urged that it is important for children, emergency has been added in the 236.3(g)(1) requires DHS to provide particularly unaccompanied children, to regulatory text. The new definition minors or UACs with Form I–770 and be able to understand and follow largely tracks the existing text of the states that the notice shall be provided, instructions or directions given to them FSA except that it reflects DHS’s read, or explained to the minor or UAC by Federal officials, attorneys, and care recognition that emergencies may not in a language and manner that he or she custodians in licensed facilities. The only delay placement of minors but commenter also asserted that children understands. These provisions ensure could also delay compliance with other with learning or developmental that a minor or UAC’s special needs are provisions of the proposed rule or disabilities would be less likely to take taken into account, including when excuse noncompliance on a temporary advantage of the resources for which determining placement. basis. they are eligible and may not fully Changes to Final Rule Public Comments and Response comprehend the life-changing decisions DHS is amending the regulatory that they are asked to make during their Comments. Several commenters language to delete the term immigration proceedings. Another expressed concern that the proposed ‘‘retardation’’ and insert the term commenter contended that the rule does ‘‘expanded’’ definition of ‘‘emergency’’ ‘‘intellectual disability.’’ HHS has also not adequately discuss special needs or would grant DHS too much discretion to require DHS to consider a child’s deleted this term in its regulatory suspend compliance with certain FSA disability in determining placement in a language. provisions relating to standards of care secure facility or even in a FRC. Unaccompanied Alien Child and custody for children, such as timely One commenter also condemned the § 236.3(b)(3) transport or placement of minors and use of the ‘‘outdated’’ term other conditions implicating their basic ‘‘retardation’’ in the definition of special Summary of Proposed Rule services. needs minor. The commenter stated that DHS proposed to define a UAC as Some of these commenters contended the term is used as a slur that provided in 6 U.S.C. 279(g)(2), which that the definition would allow DHS to dehumanizes, demeans, and does very states that a UAC is a child under the declare any situation an emergency and real emotional harm to people with age of 18 who has no lawful deny any and all protections to children mental and developmental disabilities. immigration status in the United States Several commenters stated that the The commenter acknowledged the term and who has no parent or legal guardian expanded definitions of emergency was used in the FSA agreement, but present in the United States who is would make ignoring limitations on argued that it is inappropriate in a available to provide care and physical transfer the ‘‘default’’ and compliance modern-day regulation. custody. with the FSA timeframe the exception

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rather than the rule. These commenters One commenter stated that the and made available through standing stated this would expose children to example provided by DHS regarding mechanisms. dangerous conditions documented delayed access to a snack or meal seems Response. DHS notes that paragraph repeatedly by government inspectors reasonable; however, it would provide 12(B) of the FSA defines an emergency and outside researchers, including DHS the flexibility to label any act or as ‘‘any act or event that prevents the inadequate and inappropriate food, event an emergency and that placement of minors pursuant to severely cold temperatures, bullying recommended that DHS: (1) Look into paragraph 19 within the time frame and abuse, and lack of medical care. the definition of emergency in the provided’’ (i.e., three days or five days, Other commenters had specific American Bar Association’s (ABA) as applicable). The FSA also contains a objections to the proposed definition. Unaccompanied Child Standards; and non-exhaustive list of acts or events that One contended that it was circular, (2) adopt a more limited, non-circular constitute an emergency, such as defining an emergency primarily as an definition of emergency, to avoid what ‘‘natural disasters (e.g., earthquakes, event that prevents compliance. Some the commenter considered an hurricanes, etc.), facility fires, civil expressed concern that events other unnecessary relaxation of the FSA disturbances, and medical emergencies than a natural disaster, facility fire, civil standards. Other commenters (e.g., a chicken pox epidemic among a disturbance, and medical or public recommended that DHS instead ensure group of minors).’’ DHS notes that the health concerns might also qualify as an that non-perishable, nutritious food and definition of emergency contained emergency, leaving significant room for bottled water in packs will be kept on within this provision does not depart interpretation. Several commenters site at all times in case of an emergency from how the FSA defines an emergency stated that the phrase ‘‘other evacuation in order to ensure that act or event. Rather, this provision conditions’’ would implicate the basic nutritional needs of children are met. recognizes that, in rare circumstances, needs of the children which would Several commenters argued that DHS an emergency may arise, generally further jeopardize their well-being, and HHS should provide more evidence unanticipated, that affects more than health, and safety and runs contrary to and explanation of the need to expand just the transfer of a minor from one the explicit placement context of the the current definition; describe how the facility to another (e.g., a natural FSA. Another commenter expressed agencies arrived at these definitions; disaster or facility fire may render CBP concern that the language ‘‘medical or provide a timeframe for how long an temporarily unable to provide contact public health concerns at one or more emergency may last; and provide for the between a minor and family members facilities’’ which allow for a possible consequences for invoking the apprehended with him or her). As emergency in instances where several emergency when unwarranted. indicated in the NPRM, the impact, One of these commenters minors lack key vaccinations, or where severity, and timing of a given recommended that DHS and HHS a few minors may require treatment for emergency situation dictate the compile a comprehensive list of chronic conditions such as asthma or operational feasibility of providing permissible emergency circumstances. certain items to minors, and thus the diabetes. One commenter noted that the proposed regulations cannot contain every With respect to the consequences of rule leaves the facility to decide the possible reality DHS will face. The the emergency, commenters offered still rationale and length of an emergency applicability of ‘‘emergency’’ is other concerns. One commenter and recommended that DHS hold intended to be flexible to the extent it expressed concern with the language detainment centers accountable to the fits within the parameters set forth by that minors must be transferred ‘‘as maximum safety and compliance the FSA. Therefore, DHS disagrees with expeditiously as possible,’’ instead of requirements and make no exemptions commenters’ claim that the definition of including a defined period of 3 or 5 to the minimum standards in FRCs for emergency creates excessive discretion, days, as the commenter believed detainees. allows DHS to declare an emergency for required by the TVPRA. Several commenters addressed any reason, or unnecessarily relaxes the A few commenters noted that, as a conduct in the event of an emergency. existing FSA standards. result of the proposed definition, minors Some, for example, recommended that DHS also notes that, during an may be held indefinitely in temporary the proposed rule should clarify the emergency situation, it continues to CBP facilities that are intended only for circumstances that the Government make every effort to transfer minors and short-term use and that are assertedly would consider constituting UACs as expeditiously as possible, and notorious for frigid temperature, emergencies, establish that any to provide all other required amenities deficient medical care, and other poor corresponding exemptions be limited in as set out in the FSA. Depending on the conditions (i.e., sleeping in office scope, and ensure that the fundamental severity of the emergency, the provision buildings without beds or showers, or in needs of children are met, regardless of of one or more FSA requirements may tents, vans or buses without water and the circumstances constituting the be temporarily delayed for some minors sanitation). One commenter expressed ‘‘emergency.’’ and UACs. For instance, if a child in a concern that, even without invoking an One commenter suggested that in CBP facility has a medical emergency emergency, CBP is often grossly cases of emergency, rather than devising such that he or she must be provided negligent towards children and those in means to delay the provision of basic with urgent medical care, it may be its custody. services or care and timely placement or necessary to temporarily delay the Several commenters contended that transfer, DHS should consider how provision of meals to other minors and the proposed definition contradicts FSA provisions could be made to serve the UACs during the time required to paragraph 12A which provides no children during transport and should provide such medical care. As soon as exception for housing minors with prioritize emergency preparedness the medical emergency subsides, unrelated adults for longer than 24 planning to ensure readiness to respond. however, CBP would resume the hours, because they viewed the broad And several commenters recommended provision of meals to all other minors interpretation of emergency as allowing that, from a public health perspective, and UACs. Similarly, if a facility suffers DHS to house children with unrelated designation of an emergency should an electrical failure, such that the air adults indefinitely and for virtually any trigger additional resources, prepared in conditioning breaks, all minors and reason. advance through contingency planning UACs in that facility may temporarily be

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held in temperatures that do not comply Changes to Final Rule parent or legal guardian, the individuals with the applicable standards set out in DHS declines to change its proposed would not constitute a family unit, and, the FSA. CBP would work to rectify the definition of emergency in response to if no parent or legal guardian for the problem as quickly as possible, and public comments. minor is in the United States or the/ would take steps to mitigate the parent or legal guardian in the United problem (e.g., providing extra fans for Escape-Risk § 236.3(b)(6) States is not available to provide care the facility). Once the air conditioning Summary of Proposed Rule and physical custody, the minor would be a UAC. is fixed, however, the minors and UACs The term ‘‘escape-risk’’ is defined in would return to conditions consistent paragraph 22 of the FSA. DHS proposed Public Comments and Response with the standards set out in the FSA. to define escape-risk as a minor who Comments. Commenters expressed CBP also records the provision of food attempts to escape from custody. DHS concern that the proposed definition of to minors and UACs, and records that proposed requirements and clarification family member seeks to narrow the CBP has routinely confirmed the for the definition of escape-risk. A definition of ‘‘family unit’’ by excluding availability of drinking water, minor is an escape-risk if he or she is adult family members other than the operational toilets, and sinks, as well as subject to a final order of removal, has child and his/her biological parent(s) or the conditions in its hold cells (e.g., a prior breach of bond, has failed to legal guardian(s). The commenters temperature, cleanliness) in its appear before DHS or immigration wrote that DHS has ignored the reality electronic systems of records. Any court, or has previously absconded from in some foreign cultures that extended emergency situations requiring state or Federal custody. family members may be the sole temporary suspension of the Public Comments and Response caregivers for the children and requirements set out in the FSA, as well recommended that DHS adopt a broad Comments. One commenter stated as the conclusion of that emergency, is definition of ‘‘family unit’’ to comply that the proposed rule definition of also recorded in the electronic systems with the FSA and accepted child escape risk includes a child who ‘‘has welfare principles and practices. of records. To the extent it is able, CBP previously absconded or attempted to also maintains a sufficient stockpile of One commenter stated that the abscond from state or Federal custody.’’ proposed definition violates the best supplies, such as snacks, at its facilities The commenter argued that the FSA interest of the child standard because it to ensure that there are sufficient refers only to Federal custody and that separates children from their related, supplies available in an emergency the revised definition could include a non-parent caregivers. The commenter situation. child who has been ordered into foster stated that, although the FSA mandates DHS disagrees with commenters’ care by a state juvenile court and then that UACs be ‘‘segregated from concern about minors being held ran away from foster care. The unrelated adults,’’ it requires that DHS ‘‘indefinitely’’ as a result of a declared commenter concluded children should provide access to ‘‘contact with family emergency and emphasizes that when not face detention in a secure facility members that were arrested with the emergency conditions exist, transfer because of such circumstances. minor,’’ hence recognizing a broader must still occur ‘‘as expeditiously as Response. In paragraph 22 of the FSA, definition of ‘‘family.’’ Likewise, the escape risk is defined as ‘‘a serious risk possible.’’ DHS notes that the ‘‘as commenter stated that ORR’s current that the minor will attempt to escape expeditiously as possible’’ time frame is definition of ‘‘family’’ and HHS’ from custody.’’ The NPRM adopted that derived from the FSA itself. The proposed regulations, which allow the same definition. Paragraph 22 of the existence of an emergency under these release of a child to an adult seeking FSA also provides a non-exhaustive list custody when family reunification is regulations does not excuse DHS from of factors to consider when determining not possible, recognize a broader transferring minors or UACs to licensed whether a minor is an escape risk. definition. programs or HHS custody, respectively. Because the list of factors to consider is One commenter recommended that DHS must still move as expeditiously as not exhaustive, it is not inconsistent DHS adopt the broad definition of possible, given the emergency, to place with the FSA for DHS to consider family similar to the ‘‘Standards for the minors and/or UACs. additional factors in determining a Custody, Placement and Care; Legal DHS notes that the ABA’s minor’s escape risk. DHS continues to Representation and Adjudication of Unaccompanied Child Standards’ find that whether the minor has Unaccompanied Alien Children in the concept of ‘‘emergency’’ appears to previously absconded or attempted to United States’’ (UC Standards) and the apply to a much narrower situation than abscond from state or Federal custody to ABA Civil Immigration Detention the concept of ‘‘emergency’’ in the FSA, be relevant to whether there is a risk the Standards. The commenter contends and declines to apply these standards to minor will attempt to escape from DHS that nothing in the language of the DHS’s regulatory definition of custody. TVPRA restricts DHS’s ability to release emergency. The ABA concept of Changes to Final Rule a UAC to someone other than a parent or legal guardian and therefore there is ‘‘emergency’’ appears to govern when it DHS declines to change its proposed may be permissible to house minors and no legal requirement to narrow the definition of escape risk in response to definition of ‘‘family member.’’ UACs with unrelated adults. The FSA public comments. Response. DHS notes that the definition of emergency covers a wider Family Unit § 236.3(b)(7) definition of ‘‘family unit’’ in this rule variety of situations than the ABA’s does not encompass a broader definition provision. Accordingly, DHS has Summary of Proposed Rule of family as proposed by the described such situations in other The term family unit is not defined in commenters because DHS must ensure provisions of this rule. See, e.g., 8 CFR the FSA. DHS proposed to define family it complies with the applicable laws and 236.3(g)(2)(ii). DHS notes that these unit as two or more aliens consisting of regulations governing the apprehension, provisions of the proposed rule do a minor accompanied by a parent or processing, care, and custody of alien incorporate and contemplate certain legal guardian. If evidence shows the juveniles. The HSA and the TVPRA emergency exceptions. minor has no relation to the purported transferred to ORR HHS the

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responsibility for the care and custody similar authorities to release UACs to concerns about the minor’s safety upon of UACs. A UAC, as defined in the HSA, sponsors. For an additional discussion such release, and no concerns about the is a minor under 18 years of age who about the individuals to whom a non- adult relative’s ability to secure the non- lacks lawful immigration status in the UAC minor may be released, please see UAC minor’s timely appearance before United States and either lacks a parent the discussion in Section B.10, Release DHS or the immigration courts. Any or legal guardian in the United States or of Minors from DHS Custody. The release of a non-UAC minor to an adult lacks a parent or legal guardian in the commenter also notes that the FSA relative other than a parent or legal United States available to provide care requires DHS to provide ‘‘contact with guardian will be within the and physical custody. See 6 U.S.C. family members that were arrested with unreviewable discretion of DHS. DHS 279(g)(2). Once an alien juvenile has the minor,’’ FSA paragraph 12, and thus reiterates, however, that if no parent or been determined to be a UAC, DHS ‘‘recognizes the broader definition of legal guardian is in the United States must transfer the UAC to the care and family.’’ However, this paragraph refers and available to provide care and custody of HHS within 72 hours, absent to procedures and temporary placement physical custody for an alien under the exceptional circumstances (unless such immediately following the arrest or age of 18 with no lawful status, the a UAC is a national or habitual resident apprehension of a minor. This juvenile meets the definition of a UAC of a contiguous country and is permitted paragraph acknowledges that a juvenile and must be transferred to HHS custody to withdraw his or her application for may be encountered with family as only HHS has the responsibility for admission under section 1232(a)(2)). See members who are not parents or legal the care, custody, and placement of 8 U.S.C. 1232(b)(3). Accordingly, DHS guardians, and that there is a UACs. See 6 U.S.C. 279(g)(2); 8 U.S.C. has no authority to release a UAC. meaningful benefit to providing contact 1232(b)(1), (3). In accordance with the TVPRA, only with such family members. However, Changes to Final Rule non-UACs can be held in DHS custody the FSA does not require DHS to detain at an FRC. By definition, a minor is not juvenile aliens together with adult DHS declines to change its proposed a UAC if he or she has an adult parent relatives who are not parents or legal definition of family unit in response to or legal guardian in the United States guardians, and DHS is not permitted to public comments, but will change who is available to provide care and detain UACs under the HSA and certain provisions regarding the release physical custody. The term ‘‘family TVPRA. of minors as explained in subsequent unit’’ is defined to include those alien DHS notes that the commenter sections. juveniles—minors who are recommends DHS adopt the broad Licensed Facility § 236.3(b)(9) accompanied by his/her/their adult definition of family similar to those parent(s) or legal guardian(s)—who are described in the ABA ‘‘Standards for the Summary of Proposed Rule not UACs. Absent additional Custody, Placement and Care; Legal In § 236.3(b)(9), DHS proposed a information available to DHS at the time Representation and Adjudication of definition for ‘‘licensed facility.’’ To of encounter indicating a parent or legal Unaccompanied Alien Children in the parallel the provisions of FSA paragraph guardian was present in the United United States’’ or the ABA Civil 6, DHS proposed that facilities that States and available to provide care and Immigration Detention Standards. temporarily detain minors obtain physical custody, if a juvenile alien is However, those standards include licensing where appropriate licenses are encountered or apprehended with an family members who could not be available from a State, county, or adult relative other than a parent or detained together in DHS custody under municipality in which the facility is legal guardian, that juvenile alien lacks the TVPRA and consistent with the located. The proposed rule also a parent or legal guardian in the United HSA. eliminated existing barriers to the States available to provide care and DHS also notes the commenter’s continued use of FRCs by creating an physical custody of the juvenile. See 6 disagreement with DHS’s contention alternative to meet the licensed facility U.S.C. 279(g)(2). Thus, under the HSA that the TVPRA restricts DHS’s ability to definition for such detention to provide and TVPRA, the juvenile alien would be release a UAC to someone other than a reasonable assurances about the determined to be a UAC and transferred parent or a legal guardian. As stated in conditions of confinement at that to the care and custody of HHS. See 8 the proposed rule, following the passage facility, and thus to implement the U.S.C. 1232(b)(3). Such a juvenile alien of the TVPRA, HHS is solely responsible underlying purpose of the FSA’s would not be detained in DHS custody for the care and custody of UACs, and licensing requirement. DHS’s proposed at an FRC. DHS no longer has the authority to definition considers a ‘‘licensed DHS notes that the commenter’s release a UAC. However, upon further facility’’ to be one that is licensed by the suggestion that DHS adopt ORR’s consideration of the commenter’s State, county, or municipality in which definition of ‘‘family’’ in the ORR contention and review of relevant it is located. If no such licensing scheme proposed regulation at 45 CFR 410.300 statutes and case law, DHS has exists, DHS’s proposed that the facility is misguided, as that section does not determined that the law does not will meet the definition of ‘‘licensed contain a separate definition of ‘‘family’’ prohibit DHS from releasing a non-UAC facility’’ if it complies with ICE’s family but instead identifies the types of minor to someone who is not a parent residential standards as confirmed by a potential sponsors to whom ORR may or legal guardian. DHS acknowledges third-party with audit experience hired release a UAC. DHS notes that the term that this interpretation of the law differs for such a purpose. ‘‘family’’ encompasses a broader group from the interpretation represented to of individuals than those individuals the U.S. Court of Appeals for the 9th Public Comments and Response determined to be a ‘‘family unit.’’ HHS Circuit in recent litigation, but is Comments. One commenter noted has unique authorities under the making this change upon due that she supports DHS-licensed facilities TVPRA and the HSA to determine consideration. See Brief for Appellants, that would allow children to stay with whether release of a UAC to a sponsor— Flores v. Sessions, No. 17–56297 (9th their parents or relatives as long as which may include an adult who is a Cir. Jan. 5, 2018). This is being possible, given that prolonged member of the child’s family, but who permitted to facilitate transfers to non- separation from families can be is not a parent or legal guardian—is parent family members when such a traumatic for children. The commenter appropriate. DHS does not have any transfer is appropriate, that DHS has no stated that she would support these

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facilities to detain families during their license detention facilities because Detention Oversight conducted more immigration proceedings if they are current facilities do not have adequate thorough inspections, the commenter ‘‘consistent with applicable law.’’ Many oversight and, as a result, DHS is not noted that the OIG expressed concern other comments, however, raised issues currently capable of maintaining clean, that these inspections were done only such as a potential conflict of interest in humane, and safe detention centers. once every three years with no follow- permitting DHS to establish the Multiple commenters cited to a June up to see if the problems were corrected. licensing requirements for DHS 2018 report from the DHS Office of A commenter stated that reports from facilities, whether Federal licensing Inspector General (OIG), which found private inspections are rarely available standards would be as rigorous as state that the Nakamoto Group, the third- and, even when they are, do not inform standards, alleged inconsistencies with party contractor ICE has most frequently the public about what standards were the FSA, whether the Federal used to conduct inspections at adult used as a base and how long non- Government has authority to license detention facilities, did not always compliance issues took to be resolved. detention facilities, and whether Federal examine actual conditions, was not These commenters pointed to the case licensing would provide adequate consistently thorough, and frequently of Danya International, a private monitoring and oversight. failed to identify compliance contractor hired by DHS to inspect 21 family detention centers for compliance • Self-Licensing and Oversight deficiencies. According to the commenters, the report showed that the with ICE’s internal standards, to Comments. Numerous commenters agency’s self-inspections by the highlight their concerns with the quality recommended alternative language to Nakamoto Group have been lax and and lack of transparency in the the proposed definition of ‘‘licensed severely lacking. The report found that, inspections carried out by ICE’s third- facility.’’ One commenter suggested that in some instances, the Nakamoto Group party vendors. They stated that only in all cases where a state, county, or even misrepresented results in their three reports from Danya’s inspections municipality licensing program is reports to ICE. The commenters also have been released publicly. According unavailable that ICE’s family residential stated that the Nakamoto Group had to the commenters, the only information standards should align with applicable standards that were very difficult to fail, available about the remaining reports is state child welfare laws and and one commenter requested that DHS an assertion by an ICE official in a court regulations—including all state and verify that the Nakamoto Group not declaration that ‘‘Danya has generally local building, fire, health, and safety serve as a third-party contractor for found the FRCs to be compliant with a codes. This commenter stated that in these licensed facilities. majority’’ of standards, and ‘‘[w]here emergency situations where immediate Commenters also discussed other Danya observed individual issues of or short-term solutions are needed, aspects of the OIG report. One non-compliance, the facilities took existing state licensed child welfare commenter noted that the OIG report corrective action as appropriate and facilities should be considered as an found that DHS–ICE existing achieved compliance although this is a option. Another commenter suggested inspections and monitoring mechanisms continuous process.’’ The commenters that the period of detention should be for detention facilities neither ‘‘ensure stated that the ICE descriptions were shortened to 14 days. The commenter consistent compliance with detention vague and provided very little also objected to the proposed new limits standards, nor do they promote information regarding which ICE on to whom children may be released, comprehensive deficiency corrections.’’ standards were violated, or how severe and the elimination of the requirement Some commenters noted that typically or prolonged these violations were. The that detention centers be subject to State three to five inspectors have only three commenters claim that ICE denied inspections. The commenter specifically days to interview 85–100 detainees and requests for access to the reports even to suggested that detention centers be perform and document their inspection, DHS’s Advisory Committee on Family required to meet care requirements that an amount of time that the OIG found Residential Centers. They also asserted apply to day care centers, such as insufficient to see if the facility was that DHS’s Office of Civil Rights and having a small ratio of care givers to actually implementing its required Civil Liberties (CRCL) has conducted children, background checks, and policies. According to the commenters, more in-depth inspections of family check-in visits. Still other commenters the OIG also found that it could not detention centers, and what is publicly stated that the proposed rule does not characterize the interviews with known from those inspections appears state who will propose the Federal detainees as sufficient because the to undermine those conducted by DHS’s licensing scheme for detention centers. conversations with detainees were not third-party vendors. A few commenters stated that DHS’s Response. DHS understands conducted in private and were in difficulty licensing facilities under state commenters’ concerns about the Federal English only. licensing regimes results from the Government setting its own standards Yet another commenter cited the OIG unacceptable conditions of confinement instead of using state licensing report to state that inspections by third- within DHS’s facilities rather than a standards; however, many States have party contractors did not insure failure of the state licensing processes. no standards for facilities housing minimum child welfare standards were One commenter stated ‘‘In unlicensed families. The Federal Government met, and that although ICE completed facilities, children are at high risk for cannot require States to create oversight inspections every three years, abuse and neglect, which in turn will regulatory structures to license and it did not correct the problems it ultimately result in high costs paid not inspect FRCs. Therefore, to ensure found.22 Although the ICE Office of only in the form of unnecessary compliance with the FSA in those States suffering, the disintegration of the social that do not have any applicable 21 Department of Homeland Security Office of fabric of our nation, but also by taxpayer Inspector General, ICE’s Inspections and Monitoring standards for the housing of family money going towards Department of of Detention Facilities Do Not Lead to Sustained units, DHS established Family Children and Families, Department of Compliance or Systemic Improvements: DHS OIG Youth Services, and more state agencies Highlights (OIG–18–67) (June 26, 2018) https:// of Detention Facilities Do Not Lead to Sustained www.oig.dhs.gov/sites/default/files/assets/2018-06/ Compliance or Systemic Improvements: DHS OIG responsible for welfare of youth.’’ OIG-8-67-Jun18.pdf. Highlights (OIG–18–67) (June 26, 2018), https:// Numerous commenters stated that 22 Department of Homeland Security Office of www.oig.dhs.gov/sites/default/files/assets/2018-06/ DHS should not be allowed to self- Inspector General, ICE’s Inspections and Monitoring OIG-18-67-Jun18.pdf.; Id. at 6–8.

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Residential Standards (FRS) in 2007 residential program. JFRMU established examine oversight of the FRCs as part of with the FSA as its base after a review a review team led by a child-focused the report. See Office of the Inspector of contemporaneous state codes of SME with proficiency in assessing General, Dep’t of Homeland Security, Pennsylvania and Texas. The first conditions of confinement and OIG–18–67, ICE’s Inspections and edition of the ICE FRS, released in 2007, residential programming. The team Monitoring of Detention Facilities Do was developed by independent subject assessed FRC practices and policies, and Not Lead to Sustained Compliance or matter experts (SMEs), government conducted interviews with existing FRC Systemic Improvements 2 n.1 (2018). As officials, and the nongovernmental management and direct care staff, as such, the report is of limited value in organization (NGO) community. ICE’s well as with FRC ICE/Enforcement and assessing ICE’s oversight of the FRCs. Juvenile and Family Residential Removal Operations (ERO) staff, health FRCs are subject to a different set of Management Unit (JFRMU) engaged care and mental health providers, and standards—the Family Residential other DHS components in reviewing case management staff. These interviews Standards (FRS)—than other facilities and providing input. Further, JFRMU allowed participants the opportunity to and receive inspections more sought various SMEs in areas such as recommend improvements based on frequently, and by a larger number of emergency planning, detention their experiences. The review team also administration, trauma informed care, sought to implement improvements to outside entities, than those detention child development, and legal rights and the standards that directly addressed centers reviewed in the OIG report. For representation to evaluate the draft feedback received from numerous instance, despite the ongoing litigation standards. private sector agencies and NGOs. The surrounding state licensure of the FRCs, After several years of operations and review team synthesized those findings the State of Texas and the data collection through a rigorous and incorporated relevant changes into Commonwealth of Pennsylvania monthly and semiannual inspection a second-edition FRS. The FRS continue regularly conduct both announced and program, ICE commenced a top-to- to be improved based on best practices. unannounced inspections of FRCs, and bottom review of the first-edition FRS. DHS notes that while the June 26, the reports of those inspections are This review included an analysis of past 2018, report issued by DHS OIG did publicly available on the States’ and current best practices at FRCs, and make recommendations on how ICE websites. Table 6 demonstrates the focused on improving the standards to could improve oversight over detention number of inspections ICE FRCs more effectively accommodate a facilities, OIG did not specifically typically receive on a regular basis.

TABLE 6—FRC INSPECTIONS

FRC inspection type Typical frequency of inspection

State inspectors ...... 1 Standard by Standard Review when submitting the license applica- tions. 3 unannounced inspections prior to granting a temporary 6-month pro- visional license. 3 additional unannounced inspections prior to granting a permanent non-expiring license. Unlimited, randomized, unannounced audits. Danya (ICE contractor) ...... Monthly. PREA ...... Every two years. CRCL (DHS office) ...... Annual audits until 2018. Presently, will inspect if warranted based on complaints received. IHSC ...... Annual. OIG/GAO ...... Variable. Driven by OIG hotline and/or Congressional inquiries. ICE ERO COR/Compliance ...... Weekly compliance audits/logs. Weekly COR meetings with Service Providers, IHSC, and ICE ERO.

Despite the OIG report’s limited inspection documentation review, ODO development of protocols for ERO field relevance to this situation, however, has decreased the amount of advanced offices to require facilities to implement DHS notes that ICE has already taken notice provided to facilities in corrective actions resulting from several steps to address the preparation for an ODO inspection. Detention Service Managers’ recommendations set forth by OIG in Furthermore, ICE has continued to make identification of noncompliance with the June 26, 2018 report. For instance, progress addressing the other four detention standards. The ERO ICE has requested that OIG consider recommendations. Headquarters Detention Monitoring Unit recommendation three, which The second recommendation regarded (DMU) is continuing to work with field addressed the development of a follow- reinstatement of and documentation for offices and unit staff enforce facility up inspection process, resolved and a quality assurance program for compliance to the ICE detention closed due to progress made by ICE contracted inspections of detention standards and to address deficiencies towards achieving this goal. In FY 2018, facilities, and in October 2018, the ERO identified by the on-site Detention ICE Office of Detention and Oversight Detention Standards Compliance Unit Services Manager and Detention (ODO) conducted two follow-up created a Quality Assurance Team Standards Compliance Officers. inspections focused on areas where (QAT) to perform quality management More recent developments, deficiencies were previously identified. over ICE’s contract inspectors. Moving specifically the release of the Joint And although not eliminating advanced forward, one QAT staff member will Explanatory Statement (JES) to the notice for inspections because accompany ICE contract inspectors Consolidated Appropriations Act, 2019, unannounced inspections would during their annual facility inspections. Public Law 116–6, have affected ICE’s disrupt facility operations and the pre- The fifth recommendation regarded the efforts to address certain

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recommendations. The first party contractors within 60 days of further below in the section responding recommendation was for ICE to revise inspection. See Facility Inspections, to comments on the topic of ‘‘Danger the inspection scope and methodology https://www.ice.gov/facility-inspections, Due to Lack of Oversight.’’ and the JES contains ICE inspection (last updated Mar. 15, 2019). The final Existing family residential standards requirements that have directly rule stipulates that third-party were created with a view to care for impacted how ERO and OPR conduct inspections of FRCs will be posted in vulnerable populations such as minors. inspections. The fourth the same manner. DHS is currently working on updating recommendation focused on verification For commenters’ concerns about past these standards to implement further of identified deficiencies and tracking of failures to inspect facilities, please see improvements at FRCs. For this reason, corrective actions. How ICE addresses the discussion in Section C. Other DHS declines to adopt commenter’s the fourth recommendation will flow Comments Received, DHS Track Record suggestions to establish additional directly from decisions made in with Detention. panels for this purpose. addressing the first. ICE continues • Inspections by Outside Sources • internal dialogue to discuss full DHS Licensing Is Inconsistent With Comments. Many commenters FSA implementation of both suggested that in the creation of an recommendations. alternative Federal licensing scheme, Comments. Several commenters ICE’s existing commitment to the following questions should be stated that the proposed licensing seriously considering OIG’s answered: Which third parties will be scheme would violate the FSA because recommendations regarding detention conducting audits of such facilities; it would place children in facilities that facilities and instituting them as have not been licensed by state appropriate will not change as a result what standards will be applied by those third parties; and how will DHS and agencies. The commenters also of this final rule. contended that DHS proposed the DHS disagrees with the commenters’ HHS provide oversight over the third scheme to avoid the FSA state licensing assertions that reports from CRCL party auditors. A few commenters wrote requirement. Multiple commenters inspections have undermined the that the proposed rule does not show stated that state licensing standards for results of third-party auditor inspection how the third-party oversight system the care of children in out-of-home reports. DHS responds to the allegations would work in practice. Multiple settings exist to provide a baseline of raised by commenters about the July 17, commenters suggested that inspections protection for the health and safety of 2018, correspondence from Dr. Scott of detention facilities should be children. The commenters stated, citing Allen and Dr. Pamela McPherson inspected by an outside source instead researchers, that such licensing elsewhere in this document but notes of being run and inspected by DHS. regulations can mitigate risks of injury that the correspondence from these two One commenter stated that under the or death, reduce the spread of CRCL contractors does not reflect the FSA, the Center for Human Rights and complete posture of CRCL inspection Constitutional Law must still be allowed communicable diseases, and set up reports. In particular, many of the broad to inspect every child detention site and conditions that promote positive child negative assessments raised in the to interview and evaluate the children. development. contractors’ correspondence are Another commenter suggested that Multiple commenters stated that the inconsistent with formal findings they ICE and ORR consider issuing guidance myriad of licensing challenges that have provided to ICE in CRCL’s Expert to contractors, non-profits, and faith- faced detention facilities demonstrate Reports. More importantly, however, based organizations that are tasked with the importance of the state licensing DHS notes that nothing in this rule will assisting the Federal Government in the requirement and the crucial role that negatively affect the frequency or care or education of immigrant youth. licensing and monitoring can play in manner in which CRCL conducts FRC The commenter also recommended the guarding against and identifying inspections. creation of a Blue Ribbon Panel to Assist inappropriate conditions for children. With respect to concerns raised about with Creation of a new Federal Standard The commenters cited, as an example, the use of specific third-party for dealing with asylum seekers. The the closing of the T. Don Hutto Center contractors the Nakamoto Group and commenter specifically suggested that in Texas after three years of operation Danya, DHS notes that all contractors ICE request the National Institute of due to lawsuits related to the center’s used to conduct inspections of FRCs are Child Health and Human Development poor conditions. The commenters also required to have child welfare (NICHD) to establish such a panel to cited a 2016 revocation of a state child experience, a requirement that will not review standards for detaining family care license for the Berks County change as a result of this rulemaking. units and UACs. Residential Center contending that it DHS declines to identify the names of Response. DHS declines to include demonstrated DHS’s disregard for child particular contractors that DHS will further details about the use of third care licensure standards and employ to conduct compliance parties to conduct FRC inspections in regulations. As a final example, the inspections through this rulemaking. the text of this rule. DHS notes, as stated commenters stated that in late 2015, the DHS complies with Federal contracting elsewhere, that the results of these Texas Department of Family Protective law and cannot pre-determine which inspections will be posted publicly on Services introduced a regulation called contractors to employ via this DHS’s website. DHS will require third the ‘‘FRC rule’’ that would allow the rulemaking. parties to conduct inspections to ensure Dilley detention center to detain In response to concerns raised by the compliance with the ICE Family children while exempt from statewide commenters about transparency and Residential Standards as well as the health and safety standards but that, in accountability in the proposed FRC terms of this rule. While commenters June 2016, a judge ruled that such an inspection process, the final rule raise concerns about private, for-profit exemption could put children at risk of includes a provision requiring the contractors used for inspection of DHS abuse, particularly due to shared results of third-party audits to be posted facilities, such as the Nakamoto Group sleeping spaces with non-related adults, publicly. Since May 2018, ICE has and Danya, DHS has the ability to a decision the commenter stated was publicly posted the results of all facility penalize contractors for failing to upheld by a Federal judge in December inspection reports submitted by third- comply with ICE’s FRS as described 2016.

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Response. DHS reiterates that, to the litigation, and the facilities will Exhibit 1 of the FSA, and the Family extent state licensing is available, DHS continue to seek licensure when that Residential Standards will create will seek licensure. DHS did not becomes available. conditions that are equivalent to those propose this alternative licensing envisioned by the FSA. A robust • Legally Insufficient Authority for process to avoid the FSA state licensing schedule of inspections, along with Licensing requirements. Rather, DHS proposed compliance mechanisms that create this process because DHS cannot control Comments. Numerous commenters consequences for contractors, and whether a State will provide such questioned the legality of section increased transparency through licensing in the first place. In States 236.3(h). Most of these commenters publication, will ensure that these where licensing is unavailable, the stated that this provision violates the standards are met. See sections on minimum requirements of this FSA and related court rulings. ‘‘Danger due to lack of oversight’’ and regulation, which mirror those in Specifically, commenters asserted that ‘‘Self-Licensing and Oversight.’’ DHS Exhibit 1 of the FSA, and the Family the proposed rule is contrary to the FSA continues to disagree with court Residential Standards will create because instead of expediting the interpretations that extend the terms of conditions that are identical to those release of children, it provides for the the FSA to minors accompanied by their envisioned by the Agreement. A robust prolonged or indefinite detention of parents or legal guardians. DHS believes schedule of inspections, along with children and their families. One that it is preferable for family units to compliance mechanisms that create commenter stated that the arguments remain together during the pendency of consequences for contractors, and used to justify Federal licensure of FRCs immigration proceedings. increased transparency through in place of state licensure were DHS has the sole legal authority to publication of audit results, will ensure unequivocally rejected on July 24, 2015, detain aliens for violations of that these standards are met. In creating by the U.S. District Court for the Central immigration law; States do not. For this standards for family detention, DHS has District of California, which found that reason, the existence or non-existence of learned from past litigation, including self-licensure would not satisfy the licensure in the States does not inform In Re Hutto Family Detention Center, FSA’s mandate to place unreleased whether DHS can detain families who No. A–07–CA–164–SS (W.D. Tex. Aug. children in a program, agency, or are in removal proceedings under 29, 2007), which was resolved through organization that is licensed by an Federal immigration law. DHS does not a settlement agreement that terminated appropriate State agency to provide believe this rule raises significant in 2009. residential, group, or foster care federalism concerns under Executive Regarding the Berks FRC, this facility services. This commenter also stated Order 13132 because enforcing has been licensed since December 1, that the requirement for state licensure immigration laws falls within the sole 1999, as a Child Residential and Day attaches to all facilities used for purview of the Federal Government. Treatment Facility under 55 Pa. Code temporary detention or placement of • Danger Due to Lack of Oversight 3800. The facility has been used to alien children and any attempt by DHS house family units since 2001 and the and HHS to go around this requirement Comments. Commenters stated that State has been regularly subjecting the is not allowed under the FSA. A few the proposed regulations make clear that facility to inspections since that time. commenters contended that it would DHS does not intend to increase The license was renewed every year take legislation or judicial action to oversight of family detention centers as until October 22, 2015, when the change the feature of the FSA that part of its new licensing authority. A Pennsylvania Department of Human requires children be housed in facilities commenter stated that DHS asserts in its Services sent a letter stating that the that are state-licensed for the care of proposed regulation that ICE currently agency was unaware that Berks housed dependent children. meets the proposed licensing families and that the license for the Several commenters also wrote that requirements because it currently facility would not be renewed unless it the Federal Government lacks the requires family detention facilities to turned into a children-only facility. authority to license facilities for comply with ICE’s detention standards However, on November 9, 2015, a new children because ensuring child welfare and hires inspectors to monitor license was issued for the 2016–2017 is a police power reserved to the States. compliance, and therefore DHS would operating period. The licensing matter The commenters stated that, as a result not incur additional costs in fulfilling has been in active litigation since that of this responsibility, States have the the requirements of the proposed time, but a state court has temporarily licensing and child welfare alternative licensing process. reinstated the license of this facility infrastructure to care for the health and Many commenters stated that holding pending litigation. In the Appeal of well-being of children in its custody. children in facilities that are not Berks Cty. Residential Ctr., Docket No. Several commenters also stated that licensed by state child welfare agencies 061–15–0025 (Commonwealth of the proposed Federal licensing process is inhumane, dangerous, or unethical. Pennsylvania Department of Human fails to comply with the requirements of Some commenters stated that there is no Services, Bureau of Hearings and Executive Order 13132, which requires assurance of quality standards when the Appeals filed November 23, 2015). The consultation with the states and a entity being licensed is setting the Berks facility continues to be regularly federalism impact statement when a licensing standards and monitoring inspected by the Pennsylvania proposed rule raises significant compliance with those standards and Department of Human Services. federalism concerns, which the that there must be review or oversight In Texas, an appeals court reinstated commenters state this rule raises. by another entity. One commenter noted the regulation that codifies licensing for Response. DHS reiterates that, to the that the courts have already rejected FRCs. Texas Dep’t of Family and extent state licensing is available, DHS DHS-licensed facilities and held that Protective Servs. v. Grassroots will seek licensure from the State. children who are not released should be Leadership, Inc., No. 03–18–00261–CV, However, DHS cannot control whether housed in state-licensed facilities. 2018 WL 6187433 (Tex. App. Nov. 28, states provide such licensing, and in Another commenter urged DHS to 2018). Texas authorities have inspected states where this option is unavailable, specify clear criteria for third party the facilities at Dilley and Karnes the minimum requirements of this audits to ensure that any third party regularly during the pendency of the regulation, which mirror those in auditors are qualified to oversee

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licensing of facilities holding children the agreed-upon terms of the contract. Financial deductions or withholdings and apply appropriate criteria for the The role of the Government in quality may be a one-time event, or protection of children. The commenter assurance and oversight is to ensure alternatively, may continue until the requested that the public have an performance standards are achieved and Service Provider has corrected the opportunity to comment on these maintained. The QASP is designed to identified deficiency or made criteria before a final rule was provide an effective surveillance substantial progress toward correction. implemented. method to monitor the Service In response to the commenter’s Several commenters argued that DHS Provider’s performance. Through the concern about the status and availability and HHS’ track record for meeting state- QASP, the Government validates that of state licensure in Texas, DHS notes, licensing requirements heightened the Service Provider is complying with as mentioned above, that an appeals concerns that a self-licensing regime mandated quality standards in operating court recently reinstated the regulation would not afford sufficient protection or and maintaining facilities. These that codifies licensing for FRCs. Texas oversight for children. A few performance standards address all facets Dep’t of Family and Protective Servs. v. commenters stated that self-inspections of detainee handling, including but not Grassroots Leadership, Inc., No. 03–18– by DHS and its contractors are much limited to safety, health, legal rights, 00261–CV), 2018 WL 6187433 (Tex. weaker, and do not provide materially and facility and records management. App. Nov. 28, 2018). identical assurances about the The QASP contains a Performance Finally, DHS notes that although conditions or protections that the FSA Requirements Summary (PRS) which family detention is not needed as often provides. One commenter pointed to its communicates what the Federal at the state level does not mean that experience with the Pennsylvania Government intends to qualitatively family detention is inappropriate in the facilities contracted to provide services inspect. The PRS is based on the Federal immigration context, to DHS, which had its license revoked American Correctional Association particularly in circumstances involving by the State of Pennsylvania, and in the (ACA) Standards for Adult Local control of the borders where Congress commenter’s opinion reinforces the Detention and ICE 2011 Performance has generally expressed a mandate for need for state licensing standards. Based National Detention Standards detention of aliens pending removal Several commenters stated that the (PBNDS). The PRS identifies proceedings and pending removal lack of licensed facilities is due to performance standards groups into nine pursuant to a final order. problems with the facilities themselves, functional areas, and quality levels • Conflict of Interest not with state licensing regimes. This essential for successful performance of commenter stated that a Texas judge each requirement. ICE uses the PRS Comments. Several commenters denied licenses to family detention when conducting quality assurance asserted that allowing DHS to self- facilities in Karnes and Dilley because surveillance and oversight to guide license facilities would be a conflict of the emergency rule under which those inspections and review processes. interest ‘‘tantamount to the fox guarding facilities sought licenses would ICE monitors the Service Provider’s the henhouse.’’ Many commenters eliminate the minimum child safety compliance with performance standards stated that the Federal Government standards applicable to childcare using a variety of methods. All facilities lacks the impartiality and expertise to facilities in Texas. The commenter are subject to a full annual inspection. ensure compliance with basic standards stated that, without accountability Additionally, ICE may conduct routine, relating to the custody and care of standards, there is no way to ensure follow-up, or unscheduled ad hoc migrant children. Another commenter conditions of care imposed by the inspections as necessary (for instance, asserted that the self-licensing process Federal Government in detention as a result of unusual incidents or data exists only to further the facilities will meet the current reflected in routine monitoring). At Administration’s anti-immigration minimum standard for keeping children FRCs, ICE maintains an on-site presence policy, and that a lack of oversight will safe. Another commenter stated that the in order to conduct more frequent result in facilities such as Tornillo in absence of a general family detention oversight. Inspections and monitoring Texas with minimal safety and licensing procedure is not an may involve direct observation of healthcare standards and several abuses. unexplained policy gap but the effect of facility conditions and operations, Several commenters contended that a determination that such detention is review of documentation, and/or DHS would have no incentive to ensure neither recommended nor typically interviews with facility personnel and compliance with baseline child done. detainees. protection standards since its principal Response. DHS disagrees with the In addition to routine and objective is imprisonment rather than assertion that it is incapable of unscheduled monitoring, financial- family detention. Some commenters providing meaningful oversight for based incentives are another way ICE stated that DHS’s objective is to FRCs. DHS employs third-party holds Service Providers accountable. discriminate against Central American inspectors to ensure that DHS Service Performance of services and compliance immigrants and one commenter said Providers (such as the contracted with standards is essential for the that removing the state licensing entities that run the daily operations of Service Provider to receive the full requirement is a cover allowing for more the FRCs) abide by the standards that payment identified in formal racial abuse ‘‘under the guise of DHS requires. The results of these agreements or contracts. For example, deterrence.’’ inspections may prompt DHS to take ICE may withhold or deduct funds for Some commenters stated that because corrective action against the Service unsatisfactory performance by the of the unique vulnerability of children Providers if necessary. For instance, ICE Service Provider that is recorded or and their high risk for trauma, uses a Quality Assurance Surveillance observed through site inspections, trafficking, and violence, independent Plan (QASP) for each service provider, document review, interviews, or other licensing standards for detention and this QASP is based on the premise feedback. A Service Provider’s facilities are of the utmost importance. that the Service Provider is responsible performance is rated as either One commenter stated that DHS should for the day-to-day operation of the acceptable, deficient, or at-risk. Based not be allowed to self-license because facility, as well as all management and on this rating, ICE may implement ICE’s Inspector General has found self- quality control actions required to meet financial adjustments or penalties. auditing methods are ‘‘troubling and

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inadequate.’’ 23 Another commenter circumstances to detain aliens pending private companies and be more stated that reports from physicians their removal from the United States. expensive for taxpayers. within DHS CRCL have found serious Congress has long been aware of the Response. DHS disagrees with these compliance issues in DHS-run facilities existence of alien family units seeking assertions, and discusses commenters’ resulting in imminent risk of significant entry into the United States, but mischaracterization of DHS detention mental health and medical harm. Other Congress has never specified the authority and practices subsequently in commenters stated that the proposed method through which DHS’s detention this rule. DHS considers that ‘‘indefinite third-party monitor is not credible or facilities must obtain licensure. Thus detention’’ is inconsistent with the impartial because the third-party while commenters perceive the mission of the Department. The purpose monitor would be paid by DHS. Another application of standards developed by of immigration detention is to effectuate commenter stated that the proposed DHS and other stakeholders as a conflict removal, or for the alien to establish rule’s shift of the licensing authority of interest, Congress has not determined eligibility for relief, as quickly as from experienced and objective state that the creation or application of these possible. If the alien establishes that she licensers to an ICE contractor would standards constitute a conflict of merits relief from removal, she will be have an inherent conflict of interest that interest. released and if not, she will be removed. would not assure the best welfare of Further, in advocating for state The period of detention will last for as traumatized children. licensure as the only method of meeting long as it takes to complete removal Relying on the alleged conflict of the ‘‘licensed program’’ requirement of proceedings and no longer. ICE reports interest, several other commenters the FSA, commenters appear to presume that the majority of minor and family contended that the proposal would that States face no conflict of interest unit removals involve countries in the violate the FSA. For example, several when they license facilities for the Northern Triangle, and removals are commenters claimed that the licensing services or care of dependent children. normally effectuated promptly. Minors proposal would not comply with the DHS has created detention standards for and family units are not likely to face FSA’s requirements to place detained all other facilities in which it detains long periods in detention because minors in the ‘‘least restrictive setting’’ aliens, just as the Bureau of Prisons has immigration proceedings involving and treat minors with ‘‘dignity, respect also created standards for their own detained family units and minors are and special concern for their particular detention operations. DHS believes that placed on a priority docket by the vulnerability.’’ Another commenter the Federal Government is equally Department of Justice, Executive Office stated that the licensing proposal is capable of overseeing compliance with for Immigration Review. Family units inconsistent with the FSA because it its standards, standards which and minors can also benefit from release weakens oversight over FRCs and does incorporate and in certain cases go during the pendency of removal not provide a way to ensure that beyond the minimum requirements of proceedings if they qualify for release residential standards set by ICE are a the FSA, without negatively impacting on recognizance, parole, or other safe replacement for state licensing the care of minors in its custody due to conditions. standards. perceived conflicts of interest. Aliens subject to final orders of Another commenter stated that the Relatedly, the very financial incentive removal may generally remain detained purpose of the FSA, as confirmed by the that commenters contend would bias for a reasonable period necessary to district court, is to provide ‘‘the third-party examiners is the same effectuate removal. For aliens detained essential protection of regular and financial incentive that DHS uses to pursuant to INA 241, 8 U.S.C. 1231, this comprehensive oversight by an achieve quality control. If DHS’s own includes a presumptively reasonable independent child welfare agency,’’ inspections (e.g., CRCL, OIG, third-party period of 180 days after a final order of which the commenter stated is absent auditors, etc.) reveal that contractors are removal has been issued, and thereafter, from the proposed regulation. not adequately meeting DHS’s the alien must generally be released Response. Regarding concerns about standards, such contractors can be absent a significant likelihood of lack of accountability see section on penalized and replaced. removal in the reasonably foreseeable ‘‘Danger due to lack of oversight.’’ • future (in compliance with current law Concerns about incentive to comply and Indefinite Detention of Children Due and regulation). lack of oversight are addressed in the to Alternative Licensing As Congress has recognized, detention section ‘‘Self-Licensing and Oversight.’’ Comments. Multiple commenters is an important tool to ensure that DHS reiterates that it will seek state stated that the proposal to create and proceedings are completed and that the licensing where available. However, self-license FRCs contravenes the FSA immigration laws are enforced. EOIR DHS disagrees with commenters that by attempting to allow for children to be data shows that of closed cases from suggest DHS is unable to provide care placed in detention indefinitely. The January 1, 2013 through March 31, 2019 for families due to perceived conflicts of commenters stated that detention that started in an FRC, 43 percent of interest in its alternative licensing centers are inappropriate long-term family units have received in absentia proposal. DHS notes that the DHS has (indefinite) housing arrangements for final orders of removal. DHS OIS has held families (at the Berks FRC) since families. They contended that the found that when looking at all family 2001, long before courts extended the government is required to expeditiously unit aliens encountered at the protection of the FSA to minors release children to a parent or other Southwest Border from FY 2014 through accompanied by their parents. In the family and if this is not possible, the FY 2018, the in absentia rate for ensuing decades, DHS has refined its government must release the child to a completed cases as of the end of FY standards to better accommodate the program licensed by a state child 2018 was 66 percent. As a result, needs of family units. welfare agency program. Several exercising the authority to detain DHS is statutorily authorized and commenters suggested that this new minors in family units continues to be indeed mandated in many rule would restrict the ability to release an important component of immigration families from government custody, enforcement. The ability to consider 23 Office of Inspector General, ‘‘ICE’s Inspections resulting in indefinite detention. One FRCs licensed through adherence to and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic commenter stated that indefinite ICE’s Family Residential Standards is Improvements’’ OIG 18–67 (June 26, 2018). detention would increase profits for intended to facilitate that component of

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immigration enforcement, not to Influx § 236.3(b)(10) where the Secretary of Homeland increase profits for private companies at Summary of Proposed Rule Security ‘‘determines that an actual or the expense of taxpayers. imminent influx of aliens arriving off The NPRM proposed to define influx • the coast of the United States, or near a Miscellaneous Concerns as a situation when 130 or more minors land border, presents urgent Comments. Several commenters or UACs are eligible for placement in a circumstances requiring an immediate stated that ICE family detention licensed facility. DHS is adopting this federal response. . . .’’ 8 U.S.C. standards which would be utilized in definition without change from the FSA 1103(a)(10). The commenter urged the the proposal are typically not as except to reflect the transfer of agencies to consider a regulation that stringent as state standards currently responsibilities from legacy INS to DHS would define ‘‘urgent circumstances’’ to utilized. One commenter, for example, and ORR, and to reflect that DHS include the release without bond of a noted that ICE FRC standards permit the maintains custody of minors, as defined significant percentage of such minors, use of mechanical restraints on children in this section, and UACs, for the short with or without a parent or legal over 14 years old, whereas the licensing period pending their transfer to ORR. guardian, near to the relevant Coast regulations in Texas prohibit the use of Public Comments and Response Guard or Border Patrol sector. The such devices. The same commenter commenter ultimately proposed that Comments. Numerous commenters noted that the ICE FRC standard states influx conditions could exist when expressed concern that the proposed that the facility must meet the ‘‘minimal some combination of three criteria were definition of ‘‘influx’’ was developed nutritional needs of toddlers and present—the legacy FSA criterion of 130 based on data from the 1990s, is infants,’’ whereas the Texas regulation minors, an alternative criterion that outdated, and, if implemented, will for licensed residential facilities states takes into account the problems created result in DHS and HHS operating within the facility must ‘‘feed an infant by lack of resources other than bed a de facto permanent state of ‘‘influx.’’ whenever the infant is hungry.’’ space, and a third criterion that aligns If able to operate in that status, the influx designations for minors with Several commenters suggested that commenters contended that DHS and FRCs do not exist under state licenses designations of influx conditions HHS would have broad discretion to applicable to humanitarian entry in because States feel they are inadequate circumvent compliance with the FSA, to house both adults and children. Such general. The commenter contended that HSA, and TVPRA provisions and the such a standard would provide commenters noted that state agencies time limits on transferring children out typically license only facilities for the flexibility to respond to migrant crises of DHS custody. that involve minor aliens in care of children who are dependent on Many commenters expressed the view the State, typically due to child abuse unpredictably dangerous ways. that DHS and HHS disingenuously One commenter maintained that, and/or neglect and the need to be argued that they operate within a because the proposed rule changes the removed from the care of a parent or constant state of influx even while word ‘‘program’’ to ‘‘facility,’’ it could parents. The commenters argued that if overall border crossings are 20 percent permit lengthier detention by a parents are fit and available, a state of what they were when that term was determination that there is an influx government would never seek to lock up defined in the FSA and border staffing when more than 130 children are a child with a parent. has increased by almost three times. eligible for placement in any of the Response. Regarding any conflicts A few commenters stated that the 130- program’s facilities even if the program between state regulations and DHS influx standard also does not account has the capacity to provide placement standards, DHS will follow state for the expansions and contractions of resources for well over 130 children. regulations where there is licensing the number of UACs in custody at the The commenter viewed the proposed available for FRCs. The regulations border, which have fluctuated by tens of definition of influx as placing less focus express a preference for state licensing thousands of juveniles every year since on the needs of children than on the when that option is available at the the peak in 2014. They contended that proposed facilities to detain them. location of the FRC. For example, if the variable number requires a more Some commenters were concerned Texas licenses FRCs, state standards flexible influx baseline. that the proposed definition of influx will be followed. Regarding the use of Some commenters objected to the lifts the requirement that UACs be family detention in the state context, the proposed definition of influx on the transferred from DHS to HHS custody role of the States and the Federal basis that it enables each agency to within three to five days and allows for Government are different. States do not excuse noncompliance even where it is broad exemptions to existing child enforce immigration laws, only the not itself experiencing influx protections that could impact basic Federal Government does so; conditions. Commenters stated that DHS needs, such as the provision of snacks consequently, the presence or absence conceded in the NPRM that it has been and meals to children in custody. The of state regulations addressing the civil dealing with an influx of minors for commenters stated the rule should be detention of family units for years. The commenters claimed that as changed to clarify that any such immigration purposes is not indicative a result, even where HHS may not exemptions must be limited in scope of whether it is appropriate or not to satisfy its own ‘‘influx’’ criteria, it may and ensure that the fundamental needs detain family units in accordance with rely on DHS ‘‘influx’’ conditions of children are met in a timely manner. Federal law. because the definition allows HHS Response. As stated in the proposed rule, DHS agrees with the commenters’ Changes to the Final Rule criteria to be met ‘‘under . . . corresponding provisions of DHS observation that the definition of influx In response to public comments, DHS regulations.’’ in the FSA, which was replicated in the is adding to the definition of licensed One commenter recommended that proposed rule, renders the agency in an facility that DHS will make the results the agencies include a third alternative ongoing state of influx which has been of audits publicly available. In addition criterion for designation of influx the status quo for several years. DHS the definition also now includes that conditions to track the meaning of regularly has in its custody more than audits will occur upon the opening of a influx in the INA. The INA recognizes 130 minors and UACs eligible for facility and on a regular basis thereafter. the threat posed to national security placement in a licensed facility. For

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instance, as described in Table 7, CBP to adhere to the TFTEA definition of egress from a portion of the facility’s encountered 107,498 minors and UACs short term holding, as well as the building is not prohibited through in FY 2018. Additionally, in May of requirements currently applicable under internal locks within the building or 2019, the USBP apprehended 11,507 the FSA, as well as the TVPRA. Thus, exterior locks and egress from the UACs along the southwest border along the definition of influx as provided in facility’s premises is not prohibited with 84,532 family units (accompanied this rule would not change any aspect through secure fencing around the minors and their parents).24 OFO of current CBP operations, and therefore perimeter of the building. encountered 386 UACs and 4,134 family would not permit any change to the Public Comments and Response units during the same time period. time that minors and UACs should Thus, these numbers show that CBP remain in CBP custody. Comments. Several commenters regularly has more than 130 minors and DHS reiterates that the transfer time provided comments on the DHS UACs in custody eligible for placement frames for the transfer of UACs from definition of ‘‘non-secure.’’ Comments in a licensed facility. However, DHS DHS to HHS are now governed by the focused on the definition itself and its disagrees with the statement that such TVPRA, rather than the timelines alignment with the meaning in the FSA, an operational reality permits it to included in the FSA. The TVPRA length of stay at a facility, reasons for circumvent compliance with requires DHS to transfer UACs to HHS placing an alien juvenile in a secure requirements that stem from the FSA, within 72 hours of determining that an facility, having locked/un-locked areas, given that this definition of ‘‘influx’’ alien is a UAC, absent exceptional and ability of those in custody to come was included in the FSA. DHS had circumstances. This statute overrides and go as they would like. determined that the definition of any different period set out in the FSA. One commenter suggested that the ‘‘influx’’ as it was written in the FSA As for the assertion that the proposed proposed definition should explicitly defer to the definition of non-secure remains relevant to current operational definition of influx could excuse non- ‘‘under state law,’’ in order to comply realities. compliance by one agency due to an DHS believes that the FSA’s with the language of FSA paragraph 6. influx facing the other, DHS notes that Several commenters objected to the definition of influx is still relevant to the definition as provided in the FSA today’s operations. Indeed, it is obvious idea that the definition would allow a does not establish the existence of an family detention center to be a non- that DHS has been in a state of influx, influx vis-a`-vis each agency involved in and has been for some period of time. secure facility, stating that they were the implementation of its terms. The opposed to holding children in jail-like As further explained in the proposed 130 threshold in the FSA is the number rule, the main implication of the settings. One commenter stated that the of ‘‘minors eligible for placement in a fact that family detention centers are threshold for an influx is that in general, licensed program . . . including those under the FSA, DHS is required to patrolled by ICE officers, commonly who have been so placed or are awaiting surrounded by barbed wire fencing, and transfer non-UAC minors to licensed such placement.’’ FSA paragraph 12(B). facilities ‘‘as expeditiously as possible’’ have locked points of ingress and egress, DHS disagrees with commenters’ invalidates the definition of non-secure. rather than within either a 3- or 5-day contention that changing the term timeframe. This makes sense given the Another commenter stated that an ‘‘licensed program’’ to ‘‘licensed environment that contains locks and need for DHS to have additional facility’’ has any impact on the flexibility when it is dealing with fences does not align with the FSA understanding of what constitutes an which, though it did not define non- anything other than a very small and influx. Changing the term from manageable number of minors in its secure, said that children should be in ‘‘program’’ to ‘‘facility’’ does not affect custody. Given that DHS is currently the least restrictive environment. the requirement to transfer minors as operating under an influx pursuant to Another commenter expressed expeditiously as possible during an the FSA, DHS currently moves to concerned that there is no provision influx. As previously stated, the transfer all minors into licensed stating families can come and go as they definition of influx as proposed is facilities as expeditiously as possible. desire, so families would be restricted in designed to implement the terms of the CBP facilities are, as recognized by their movements or freedom. FSA while accounting for current Congress in the Trade Facilitation and Response. DHS notes that the operations of the Agency and the Trade Enforcement Act of 2015 definition of ‘‘non-secure’’ was intended TVPRA. (TFTEA), intended to be short-term to be subordinate to any definition that detention facilities, generally designed Changes to Final Rule currently exists under state law and is applicable to a setting that houses to hold individuals for 72 hours or less, DHS declines to change its proposed during the duration of their immigration minors. Accordingly, DHS accepts the definition of influx in response to commenter’s suggestion to add the processing. See 6 U.S.C. 211(m)(3) public comments. (defining ‘‘short-term detention’’ as language ‘‘under state law’’ into the ‘‘detention in a U.S. Customs and Non-Secure Facility § 236.3(b)(11) definition of ‘‘non-secure’’ in this final rule. Border Protection processing center for Summary of Proposed Rule 72 hours or less, before repatriation to DHS disagrees with the commenters’ a country of nationality or last habitual Non-Secure Facility is not defined in assertions that FRCs are ‘‘jail-like residence’’). CBP makes efforts to the FSA, other than to say that ‘‘homes settings.’’ Factors identified by transfer all individuals, especially and facilities operated by licensed commenters that commenters feel make minors, out of CBP facilities as programs, including facilities for special FRCs secure do more to prevent expeditiously as possible, and generally needs minors, shall be non-secure as unwanted intrusions into FRC within 72 hours. Additionally, CBP required under state law.’’ FSA properties than they do to prevent prioritizes the processing of all minors paragraph 6. DHS proposed to define a individuals housed at FRCs from and UACs, as a means to expedite the non-secure facility as a facility that leaving the property. Protections such as transfer of custody to ICE or HHS, and meets the applicable State or locality’s fencing, staff monitoring, and locks on definition of non-secure. If a State does doors that lead to the outside are basic 24 https://www.cbp.gov/newsroom/stats/sw- not define ‘‘non-secure,’’ then a DHS safety measures that are often a part of border-migration. facility shall be deemed non-secure if facilities that are responsible for the care

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of children on a regular basis. These challenging incorrect age tests to determine whether children are measures protect the children from determinations. younger than or older than 18 years of strangers who are not FRC residents, age. The commenters stated that the • Reasonable Person Standard and from hazards such as traffic and proposed procedures do not match FSA weather in the event they accidentally Comments. Several commenters or TVPRA requirements for considering become separated from a parent. expressed concern about how DHS medical tests and are inconsistent with Individuals housed at these facilities are would interpret and apply the FSA’s agency practice. For example, the free to move within the facility on a reasonable person standard. Multiple commenters stated that the proposed daily basis, and ICE does not restrict commenters asserted that the proposed procedures fail to indicate that medical individuals’ movement within the FRCs language fails to provide adequate tests cannot serve as the sole basis for for punitive reasons. specificity about the type and amount of age determinations, limit medical evidence used to inform the standard. testing to bone and dental radiographs, Changes to Final Rule One commenter stated that the and to account for evidence DHS agrees to amend the definition of reasonable person standard must be demonstrating the unreliability of non-secure facility in response to public informed by consideration of multiple medical tests to make accurate age comments to clarify that facilities will forms of evidence pursuant to the determinations. One commenter be deemed non-secure if they meet the TVPRA, whereas another commenter expressed concern about the lack of definition of non-secure under state law suggested incorporating informational specificity governing when medical and where the facility is located. interviews and attempts to gather dental examinations will be used, the documentary evidence as part of the absence of guidance regarding who will Office of Refugee Resettlement (ORR) standard. Another commenter stated § 236.3(b)(12) make the age determination, and the that, pursuant to the FSA, the level of training or expertise required to Summary of Proposed Rule reasonable person standard must conduct such examinations and include consideration of and should be The definition of ORR is not defined determinations. Some commenters initially informed by the child’s own stated that medical and dental in the FSA. DHS proposed to define statements regarding his or her own age. ORR as the U.S. Department of Health examinations have been used abusively Multiple commenters expressed concern by DHS in the past. and Human Services, Administration for about how medical or dental Multiple commenters recommended Children and Families, Office of Refugee examinations will or will not inform the Resettlement. reasonable person standard, with one that age determination procedures be used as a last resort, that age Public Comments and Response commenter stating that the inclusion of unreliable medical procedures in the determination findings be shared with DHS received no requests to change reasonable person standard introduces a the child in writing and in a language the definition as proposed in the further layer of arbitrariness to the he/she understands, that the findings be regulatory text. process of age determination. subject to appeal, and that age determination procedures be conducted Changes to Final Rule • Medical and Dental Examinations by an independent, multidisciplinary DHS is not changing the definition of Comments. Several commenters team of medical and mental health ORR in the final rule. expressed concern about whether the professionals, social workers, and legal 3. Age Determination § 236.3(c) proposed regulations adhere to the counsel. The commenters also FSA’s standards and medical ethics recommended that children have the Summary of Proposed Rule regarding medical and dental right to refuse a procedure which DHS proposed to codify in § 236.3(c) examinations. Some of the commenters subjects them to medical risks, pursuant the FSA’s reasonable person standard to referenced various reports and studies to the international norm of what is in determine whether a child is under or indicating that certain medical and the best interest(s) of the child as well over the age of 18 and proposed adding dental examinations cannot provide as medical ethical principles of patient that age determinations shall be based accurate age estimates and that autonomy. on the ‘‘totality of the evidence and radiographs unnecessarily expose • Totality of the Evidence and circumstances.’’ At times, making age children to radiation when used for Circumstances/TVPRA Standards determinations could include medical non-medical purposes. One medical or dental examinations. professional cautioned against using Comments. Several commenters dental radiographs for age expressed concern about age Public Comments and Response determination, contending that such determinations being based on the Commenters generally expressed tests can only provide an approximate ‘‘totality of the evidence and concern about how the proposed age estimate and may not be able to circumstances’’ and questioned whether changes incorporate the FSA’s differentiate between an individual in that basis is consistent with the reasonable person standard and his/her late teens versus an individual TVPRA’s requirement to use multiple standards regarding medical and dental who is 20 or 21 years of age. The forms of evidence for determining examinations. They also questioned commenter also expressed concern whether a child is under or over 18 whether the proposed procedures are about the possibility of the individual years of age. consistent with the TVPRA’s administering these tests not having the Another commenter expressed requirement to rely on multiple forms of requisite expertise, and not obtaining support for DHS and HHS personnel evidence for determining whether an the consent of the patient. One maintaining the flexibility to use alien is under or over the age of 18. commenter referred to medical and multiple methods for age Commenters expressed concern about a dental examinations as ‘‘pseudo- determinations. The commenter stated lack of sufficient guidance informing the science.’’ that the proposed standards and totality of the evidence and Multiple commenters expressed thresholds are mandated for circumstances threshold and an concern that the proposed procedures jurisdictional as well as medical apparent lack of an appeals process for place inappropriate weight on medical reasons, because ORR does not have

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custodial authority over individuals 18 reliable evidence, and providing an totality of the evidence standard into years of age or older. appeals process would ensure fewer this rule, and nowhere states that children find themselves incorrectly medical examinations will be the sole • Incorrect Age Determinations/Appeal designated as adults. Another factor in determining the age of an Process commenter suggested placing individual. In fact, DHS internal Comments. Several commenters individuals in HHS custody, not DHS guidance states that medical exams are expressed concern about the possibility custody, during the age determination a last resort after all other avenues have of incorrect age determinations. For process. been exhausted. The guidance also example, one commenter stated that the Finally, one commenter expressed acknowledges that cultural differences rule would reduce or eliminate the general concern about DHS and HHS make medical examinations for age current ORR policy requiring a 75 using different language within the determination more difficult and percent probability threshold for age proposed regulations that may lead to requires at least a 75 percent probability determinations. Other commenters disparate processes for determining age. of an alien being older than 18. HHS has stated that an individual claiming to be The commenter stated that the proposed similar guidance. a minor should continue to be treated as HHS language does not discuss the Commenters who proposed that age a minor until age is confirmed through reasonable person standard, does not determination findings be shared with multiple forms of evidence, pursuant to include a specific evidentiary standard the child in writing, be subject to the FSA. One of these commenters through which to assess multiple forms appeal, and be made by a stated that it is more dangerous for a of evidence, does discuss the non- multidisciplinary team of third parties minor to be detained with adults than exclusive use of radiographs where the fail to appreciate the operational to have an individual who claims to be DHS language does not mention necessity of determining an individual’s a minor, but is not, detained with other radiographs as an option, and does not age as quickly as possible. If CBP minors. require a medical professional to encounters an individual at a port of Many commentators expressed administer the radiographs. The entry who claims to be a minor, and has concern that the rule promotes the commenter suggested that DHS and no accompanying parent or legal discriminatory and xenophobic HHS propose specific and identical guardian, CBP must immediately treatment of immigrant people based on language regarding age determination determine the age of the individual, and their race, ethnicity, and national origin. procedures and requirements. accordingly whether the individual is a Multiple commenters noted that Response. DHS initially notes that the UAC, because DHS must transfer UACs differences in race, ethnicity, gender, ‘‘reasonable person’’ standard for age to HHS custody within 72 hours of nutritional standards, and poverty determination comes directly from the determining that a juvenile is a UAC. impact perceptions of age and may FSA. FSA paragraph 13 states that ‘‘[i]f The volume of apprehensions and negatively influence the age a reasonable person would conclude encounters at the border has increased determination process leading to that an alien detained by [DHS] is an so significantly in recent months that inaccurate age determinations. For adult despite his claims to be a minor, instituting appeal procedures and example, one commenter cited articles the INS shall treat the person as an adult assessments by third-party committees concluding that the age of young people for all purposes, including confinement could unnecessarily delay the UAC from is often overestimated and exacerbated and release on bond or recognizance.’’ receiving the services that he or she is when there are differences in race. This The reasonable person standard does otherwise provided under the law. commenter expressed concern that this not require DHS to ignore claims made Additionally, while commenters were would have disproportionate effects on by an individual as to his or her age. concerned that the rule does not provide certain indigenous populations. Another Given that this language was agreed for an individual to decline the medical commenter cited a study indicating that upon by all parties to the FSA as or dental examination for the purposes ‘‘black felony suspects were seen as 4.53 initially drafted, DHS disagrees that the of age determinations, the TVPRA years older than they actually were.’’ standard lacks adequate specificity, and authorizes requiring such examinations. Multiple commenters expressed declines to further elaborate on the DHS also believes that the type of concern about the lack of age reasonable person standard in the medical and dental examinations determination appeal procedures. One regulatory text set forth in this rule. conducted for the purpose of age of the commenters stated that the lack DHS also disagrees with commenters determination are not so invasive as to of an appeal mechanism compounds the that the text of this rule does not adhere present significant medical risks such possibility of arbitrary or baseless to the FSA. First, FSA paragraph 13 that an individual would want to assessments, with serious consequences states that aliens may be required to decline the examination, particularly if for minors in terms of their placement submit to a medical or dental the results of the examination can help in and release from detention. Another examination or ‘‘other appropriate demonstrate that the individual is a commenter asked what remedy exists procedures’’ to verify his or her age. minor where other evidence would for a child falsely categorized as an Second, despite commenters’ concerns suggest the individual is an adult. adult and what repercussion a about the use of radiographs, this DHS disagrees with commenters that government official would face if he/she method of age determination is the ‘‘totality of the evidence and negligently or intentionally categorizes a specifically authorized by Congress as circumstances’’ standard conflicts with child as an adult under this regulation. one form of evidence in the multiple the TVPRA’s ‘‘multiple forms of Another commenter stated that the forms of evidence to support a evidence’’ requirement. DHS drafted the ability to continually redetermine a determination of age; DHS lacks the text of proposed 8 CFR 236.3(c)(1) child’s age, as permitted under the authority to amend the TVPRA that specifically referencing 8 U.S.C. proposed procedures, puts children at codified this practice. See 8 U.S.C. 1232(b)(4) to ensure that multiple forms risk of losing critical and necessary 1232(b)(4). Third, DHS disagrees with of evidence were used in considering substantive and procedural protections. commenters’ assertions that DHS will the totality of the evidence and One commenter suggested that place inappropriate weight on the use of circumstances. DHS declines to codify providing a presumption of minor status medical tests in determining the age of more specific processes for age when there is doubt, considering only an individual. DHS has incorporated a determinations given the need for

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flexibility in reviewing various types of it will result in stripping UACs of vital persecution a child may have evidence to make the most accurate age protections mandated by Congress in experienced in his/her country or determination as possible. the HSA and TVPRA. One commenter diminish the child’s vulnerability in the Further, DHS notes that medical and stated that the statutory language, the U.S. immigration system. Nor do either dental examinations used in nature of the rights conferred, legislative of these conditions lead to the automatic conjunction with the FSA’s reasonable history, and experience implementing joinder of the child’s case with that of person standard are designed to protect the TVPRA, indicate that Congress the adult. And the commenters against a situation in which a purported intended for TVPRA protections to contended that UACs often have a need minor, who is in fact an adult, is placed prevail throughout a UAC’s legal for the protections and specialized in a facility with minors simply because proceedings, which would not be the services that UAC status affords them he/she claims to be a minor. One case if UAC status was subject to even after reaching age 18 or being commenter asserted that it is more limitless redeterminations. Another reunited with a parent or legal guardian. dangerous for a minor to be detained commenter stated that neither the HSA One commenter cited the findings of with adults than to have an individual nor the TVPRA contain any mechanism ‘‘Children on the Run,’’ a report issued who claims to be a minor, but is not, for rescinding the protections accorded by the United Nations High detained with other minors. This to UACs. The commenters Commissioner for Refugees (UNHCR) commenter failed to appreciate, recommended that once identified as a that found that the majority of children however, that the individual who claims UAC, the individual should maintain from the Northern Triangle countries to be a minor, but is not, is in fact, an this status for the duration of his/her and Mexico needed protection under adult. Similar to the commenter’s initial immigration case. One commenter international law. concern, DHS strives to avoid situations recommended striking proposed The commenters expressed concerns in which an adult is unintentionally § 236.3(d) and the final sentence of over due process and administrative detained with minors simply because proposed section 410.101 and codifying costs and delays related to changing the adult claimed to be a minor because the current initial jurisdiction policy, UAC status mid-stream. One commenter such situations may present danger to set forth in USCIS’ 2013 guidance, contended that the screening of UACs the minors. DHS also notes that the which provided that USCIS would take by child welfare professionals for reasonable person standard coupled initial jurisdiction based on a previous protection needs and by legal service with the ability to conduct medical and UAC determination even after the providers for eligibility for legal relief, dental examinations or other applicant turns 18 or is reunited with a facilitates efficient filings and appropriate procedures is intended to parent or legal guardian. adjudications. According to that defend against the effect of variables The commenters provided examples commenter, stripping children of the such as race, ethnicity, gender, etc., of the proposed provision undermining UAC-related protections would create which could otherwise negatively specific protections afforded by the and compound burdens on the system impact an age determination. DHS TVPRA. Numerous commenters noted and the child. strives to make the most accurate age that the TVPRA provides UACs with a Another commenter predicted a rush determination possible, and may require non-adversarial determination of their to file claims before a change in the various forms of evidence in order to initial asylum claim at the USCIS child’s status occurs, resulting in less make a valid assessment. Asylum Office, whereas the proposed comprehensive and well-prepared provision would force children filings. The commenter stated that the Changes to Final Rule reuniting with their parent or turning 18 proposed provision duplicates the labor DHS declines to amend the proposed to immediately testify before an of Federal agencies, as claims first filed regulatory text regarding procedures for immigration judge in a more adversarial with USCIS may be shifted to the age determination in response to public setting. caseload of EOIR. comments. Another commenter stated that the Still another commenter stated that 4. Determining Whether an Alien Is a one-year exemption given to UACs to UAC’s immigration proceedings can UAC § 236.3(d) file asylum claims is particularly take several years to conclude, and if a important because it accommodates the minor reaches 18 in that time, this will Summary of Proposed Rule needs and vulnerabilities of children create logistical burdens for the EOIR DHS proposed to determine whether fleeing persecution, who often require and DHS as cases currently in process an alien is an UAC at the time of time before they feel comfortable will suddenly need to be handled encounter or apprehension by an confiding with the professionals differently. immigration officer and to allow preparing their legal cases. Some commenters complained that immigration officers to re-evaluate a Another commenter stated that the § 236.3(d) lacks guidance on the child’s UAC status at each encounter TVPRA requires HHS to make counsel methods immigration officers would use consistent with the statutory definition available to UACs to the greatest extent to make determinations at each of a UAC. Once the alien has reached practicable, including the appointment encounter, thereby heightening the the age of 18, has obtained lawful of counsel at government expense, potential for arbitrary and capricious immigration status, or has a parent or where necessary, for all immigration decision-making. They also thought the legal guardian in the United States processes and proceedings. The rule should address the consequences of available to provide care and physical commenter suggested that UAC status erroneous re-determinations. custody to the alien, the alien is no should remain valid until the UAC’s One commenter stated that § 236.3(d) longer a UAC. When an alien minor is case concludes to ensure access to the raises due process, economic, and no longer a UAC, relevant ORR and ICE resources needed to navigate the court judicial resource concerns and DHS procedures shall apply. system. should withdraw the proposal. The commenters challenged the Response. DHS disagrees with Public Comments and Response rationale for the proposed provision, commenters’ concerns about the impact Comments. Commenters generally stating that the act of reunifying with a on juvenile aliens if DHS’s proposal is opposed moving ahead with the parent or legal guardian or turning 18 codified as part of the final rule. While proposed provision because they believe does not eliminate the trauma and commenters are correct that individuals

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who no longer meet the definition of secure detention to a licensed facility as transfer children out of inappropriate UAC will not receive certain protections expeditiously as possible. The proposed facilities and to provide children with that the law otherwise provides UACs, rule also stated that DHS will abide by care within a licensed facility. The the Departments have the responsibility written guidance detailing all commenter opined that not transferring to promulgate regulations that codify a reasonable efforts that it takes to transfer the children into licensed facilities reasonable interpretation of the statutes non-UACs. The proposed provisions quickly would impede the children’s which they administer. The plain would make ‘‘as expeditiously as ability to meet with counsel, have language of 6 U.S.C. 279(g)(2) provides possible’’ a default for all transfers of privacy and liberty rights, be educated, criteria for determining whether an non-UACs in an influx or emergency. have access to social services, and individual is a UAC, and this regulation The proposed provisions also made it protect their due process rights. In this applies those criteria. With regard to the clear that if an influx or emergency commenter’s estimation, this would filing of asylum applications, DHS notes ceases to exist, the associated timelines lead to increased likelihood of abuse that an individual who is a UAC at the for non-UAC minors would continue to and violations of children’s human time of filing his or her application, apply. rights as protected under domestic and international law. regardless of the time it takes to Public Comments and Response adjudicate the application, will still be Another commenter stated that this subject to USCIS’ initial jurisdiction. Comment. Commenters disagreed section will result in the disparate DHS believes the proposal for with the proposed language under treatment between accompanied minors immigration officers to make UAC § 236.3(e) for the transfer of minors who and UACs. This commenter stated that determinations at each encounter will are not UACs from one DHS facility to the perceived disparate treatment is ensure greater fidelity to the laws another in the case of an emergency or contrary to the FSA and not mandated affording special legal protections to influx. They said the proposed language by Federal law and will, therefore, UACs, including USCIS’ initial allows DHS discretion that the FSA prevent the termination of the FSA if jurisdiction over any asylum application does not allow. In particular, they left in the final rule. filed by a UAC, by limiting treatment of contended that the proposed language Response. DHS emphasizes that this individuals as UACs to those who are, could allow DHS the authority to delay provision does not change the FSA- in fact, UACs. Ensuring the correct transfer or placement of minors, in derived transfer timeframes that have classification and treatment of addition to suspending other applied to non-UAC minors for decades. conditions, and lead to indefinite individuals as either a UAC or not for As noted in the proposed rule, DHS has detention. They also stated that the jurisdictional and other purposes is, by continuously been dealing with an written guidance referred to in definition, consistent with and ‘‘influx’’ of minors and UACs, as the § 236.3(e)(2) should be published and term is defined in the FSA. Through this reinforcing of the effective subject to public comments. provision, DHS seeks to clarify that the administration of judicial (and other) One commenter objected that the ORR requirement to transfer non-UAC minors resources. Although in some instances regulation does not clearly identify ‘‘as expeditiously as possible’’ is only the proposal may result in DHS specific behaviors or offenses that allow applicable (i.e., the ‘‘default’’) insofar as expending additional resources to make placement of a juvenile in a secure influx or emergency conditions persist. more UAC determinations and may lead facility. The commenter further Absent influx or emergency conditions, to more asylum claims being initially contended that the broad and non- this provision requires DHS to adhere to heard in immigration proceedings specific list provided is not clear the same three-day and five-day transfer before EOIR rather than adjudicated by enough for children to understand and timeframes set forth in the FSA. For a an asylum officer, there may also be thus fails to put them on notice of the further discussion of the term instances wherein UAC rules that may result in their being ‘‘emergency,’’ please see the redeterminations conserve resources by detained in a jail-like setting. ‘‘emergency’’ definition in Section A. vesting jurisdiction with the proper One commenter stated that the entire Definitions. entity at an earlier juncture. Whether transfer section does not speak to a In response to one commenter’s resources are ultimately conserved or minor who is not a UAC being statement that this provision does not not will depend on the specific facts of transported to a facility that is an FRC speak to FRCs, and another commenter’s the case at hand. Additionally, the or being held with their family. The statement that it fails to address secure TVPRA, 8 U.S.C. 1232(c)(5), does not commenter believes this could facilities, DHS notes that the NPRM require that counsel be provided at potentially create situations where specifically stated that licensed facilities government expense to UACs. Rather, children are separated from their must be non-secure and that ‘‘the only HHS is encouraged to use pro bono parents, contrary to the intent of the non-secure facilities in which ICE services, and the statute specifically FSA. The commenter is also concerned detains minors who are not UACs are says that counsel is at no expense to the that future guidance about the FRCs.’’ 25 This language was government. transportation requirements may not intended to demonstrate that under this Changes to Final Rule align with the FSA after the FSA is provision, non-UAC minors in DHS terminated. Another commenter stated custody would generally be transferred This final rule adopts the language of that the proposal excludes transfers to licensed, non-secure, FRCs. the proposed rule without change. between DHS facilities of minors who DHS notes that one commenter 5. Transfer of Minors Who Are Not are subject to secure detention, which expressed concern about disparate UACs From One Facility to Another means that they will not be transferred treatment between accompanied minors § 236.3(e) to a licensed facility in case of an and UACs. As noted in the NPRM, UAC emergency or influx nor transferred transfer requirements are specifically Summary of Proposed Rule within the required time frame under governed by the TVPRA, whereas this DHS proposed that if there is an the FSA. provision codifies transfer requirements influx or emergency, DHS would One commenter stated that the of non-UAC minors pursuant to transfer a minor who is not a UAC and proposed rule is an attempt to who does not meet the criteria for undermine DHS’s obligations to quickly 25 See p. 45498 of the NPRM.

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paragraph 12(A) of the FSA. Absent UACs with unrelated adults due to poor benefit of doing so favors the UAC, emergency or influx conditions, this planning by DHS causing vehicles to be other aliens, and DHS. For instance, provision requires DHS to transfer non- unavailable and placing vulnerable UACs may be separated from unrelated UAC minors to a licensed facility within children at risk of harm. This adults by either a separate passenger three days if the minor is apprehended commenter also took issue with the use compartment or an empty row of seats. in a district in which a licensed program of the term ‘‘DHS facility’’ as a place to With respect to the commenters who is located. This is the same timeframe which transportation with unrelated were concerned about the addition of set forth by the TVPRA for transferring adults can take place, which could the term ‘‘or unavailable’’ to the UACs into ORR custody. encompass facilities much farther away conditions of transfer standard, DHS than Border Patrol stations and ports of reiterates that it considers the term Changes to Final Rule entry near the site of apprehension. ‘‘unavailable’’ to be clarification only The Department is finalizing this Response. In response to comments, and not a substantive change to the section as proposed with no changes. DHS is making a minor change to the current standard set forth in paragraph 6. Transfer of UACs From DHS to HHS regulatory text of § 236.3(f)(4)(i) to make 25 of the FSA. A commenter also took issue with the § 236.3(f) it clear that, as a general matter, UACs will not be transported with unrelated term ‘‘DHS facility,’’ but this language is Summary of the Proposed Rule adults. Specifically, pursuant to CBP’s consistent with paragraph 25A of the The standards contained in the National Standards on Transport, FSA, which states that ‘‘unaccompanied proposed rule would require DHS to Escort, Detention, and Search (TEDS) minors arrested or taken into custody by transfer UACs apprehended by DHS to policy, UACs may not be transported the INS should not be transported by the ORR for care, custody, and placement. with unrelated adults when separate INS in vehicles with detained adults DHS would notify ORR of the transportation is immediately available. except when being transported from the apprehension within 48 hours and, FSA paragraph 25A also provides that place of arrest or apprehension to an transfer custody within 72 hours of UACs may be transported with INS office.’’ DHS believes that the term determining that the juvenile is a UAC, unrelated adults ‘‘when being ‘‘DHS facility’’ is equivalent to ‘‘INS absent exceptional circumstances. The transported from the place of arrest or office’’ after the reorganization under proposed regulation recommended apprehension to an INS office.’’ Thus, the HSA. As described above, there are procedures for such transfer. For DHS updates the text in § 236.3(f)(4)(i) occasions where it is impractical to example, the proposed rule required to reflect the general statement that transport UACs without unrelated that UACs only be transferred with an UACs may not be transported with adults. For instance, if DHS encounters unrelated detained adult during initial unrelated adults, as well as the two a large group of aliens in a remote area, encounter or apprehension to a DHS potential exceptions to this provision. it is in the best interest of both the aliens facility, or if separate transportation is DHS notes that there may be and DHS to transport the aliens for impractical or unavailable. The proposal situations in which separate humanitarian reasons to the nearest also provided that requirements transportation for UACs and unrelated DHS facility for processing and consistent with TVPRA would govern adults is unavailable or impractical. For assessment. This provision is not the processing and transfer of UACs. instance, in situations in which CBP intended to permit DHS to transport apprehends a large group of aliens in a UACs beyond the minimum distance Public Comments and Response remote location, it would be impractical required to accomplish the operational Comments. A few commenters wrote to transport any UACs in that group necessity. that the FSA allows DHS to transport separately from unrelated adults in Comment. One commenter stated that UACs with unrelated adults only if separate vehicles. To do so would cause this provision is contrary to the TVPRA separate transportation ‘‘impractical,’’ a significant delay in transporting all of because it does not take into but that the language in § 236.3(f) would the aliens to the nearest DHS facility for consideration the requirements for those permit DHS to transport UACs with processing and all appropriate amenities from contiguous countries. The unrelated adults if it is not (e.g., the provision of food and water). commenter explained that under the ‘‘operationally feasible’’ to separate Additionally, depending on the number TVPRA, the government must screen them. The commenters pointed out that of aliens encountered in a particular children from contiguous countries if ‘‘operationally feasible’’ is interpreted location or at a particular time, DHS’s within 48 hours of apprehension or to mean ‘‘convenient,’’ it would conflict operational realities may result in there before return to their home country and with the FSA; therefore, they not being a sufficient number of ‘‘if the child does not meet such criteria recommended that the final rule retain vehicles with proper security available [of 8 U.S.C. 1232(a)(2)], or if no the language of the FSA or more clearly to transport a UAC separately. determination can be made within 48 define ‘‘operationally feasible.’’ Additionally, as the proposed hours of apprehension,’’ these children Other commenters also took issue regulation notes, where separate must be transferred to ORR. This with the use of the word ‘‘unavailable’’ transportation is impractical or commenter feared that these children and ‘‘impractical.’’ One of these unavailable, DHS is committed to could face indefinite detention in commenters did not agree with the ensuring that necessary precautions will unlicensed facilities in contravention government’s characterization that be taken to ensure the UAC’s safety, with the TVPRA. This commenter also ‘‘unavailable’’ is added for clarification. security, and well-being. One of these stated that the TVPRA does not allow This commenter contended that precautions is ensuring that when a for the exceptions to the 72-hour statutory construction says that every UAC is transported with any unrelated timeframe listed in the proposed rule word should be considered, and none detained adult, DHS will separate the because they do not meet the high bar ignored; therefore, the addition of the UAC from the unrelated adult(s) to the of ‘‘exceptional circumstances’’ as word ‘‘unavailable’’ is neither extent ‘‘operationally feasible.’’ In this intended under the TVPRA. supplemental nor clarifying and does context, ‘‘operationally feasible’’ can be Response. DHS disagrees that not comply with the FSA. Another described as mitigating all risk factors proposed § 236.3(f) is contrary to the commenter was concerned that this associated with transporting UACs with TVPRA provisions, but in light of the provision would allow DHS to transport unrelated adults to the extent that the comment, is amending the regulatory

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text to clarify that UACs from added the specific reference to stating that all minors or UACs who contiguous countries are be treated in unrelated ‘‘detained’’ adults, for clarity enter DHS custody will be issued Form accordance with the TVPRA. Pursuant on this point. I–770, as compared to the requirement to the TVPRA, an agency has 48 hours that minors be issued the form upon 7. DHS Procedures in the Apprehension to determine if UACs who are nationals apprehension. The commenter stated and Processing of Minors § 236.3(g) or habitual residents of a country that is that apprehension at the border does not contiguous with the United States meet Summary of the Proposed Rule equate to being in DHS custody nor does the criteria listed in 8 U.S.C. The proposed rule would require DHS it always prompt DHS custody. The 1232(a)(2)(A). See 8 U.S.C. 1232(a)(4). If to issue a Notice of Rights (Form I–770) commenter argued that notifying a UAC does not meet the criteria, or a and Request for Disposition and children of their rights at the earliest determination about the criteria cannot Custodial Care. It would also require the point of contact with DHS will ensure be made within 48 hours of Form I–770 to be provided, read, or that all children will receive apprehension or encounter, the UAC explained to the minor or UAC in a information that will benefit them must immediately be transferred to HHS language or manner that the minor or thereafter and that DHS officers are in accordance with the procedures set UAC understands. The proposed reminded of their obligations when apprehending children. forth in 8 U.S.C. 1232(b). The timeframe regulation would also provide that the provided in section 1232(b) is the time One commenter claimed that the minors or UACs who enter DHS custody frame set forth in § 236.3(f). The only proposed regulation deviates from would be able to make a telephone call exception to the 72-hour timeframe is if referenced paragraph 12(A) of the FSA to a parent or close friend. The proposal a UAC is able to withdraw his or her by not requiring notification to minors would also require that every minor application for admission pursuant to 8 of their rights, including the right to a who is not a UAC and is in DHS custody U.S.C. 1232(a)(2). Therefore, the bond redetermination hearing, if will be given a list of free legal service provisions of § 236.3(f) and the 72-hour applicable, and that the Form I–770 providers. Additionally, section timeframe apply to UACs who are does not include such notice. 236.3(g)(2) provides custodial standards treated in accordance with the terms of Response. Proposed § 236.3(g) immediately following apprehension. 8 U.S.C. 1232(a)(4). preserves the intent of the current DHS disagrees with the assertion that Public Comments and Response regulations and is consistent with FSA the proposed rule includes exceptions paragraphs 12(A) and 24(D), continues Comments. Several commenters to the 72-hour timeframe that are to comply with Perez-Funez v. INS, 611 inconsistent with the TVPRA. Section asserted that the proposed rule F. Supp. 990 (C.D. Cal. 1984), and 236.3(f)(3) states that ‘‘unless disregards important legal protections complies with the TVPRA requirements. exceptional circumstances are present, provided by the TVPRA regarding DHS With regard to the TVPRA, DHS DHS will transfer custody of a UAC as procedures upon apprehension of a currently screens all UACs from soon as practicable after receiving minor or UAC. The commenters raised contiguous countries upon encounter notification of an ORR placement, but concerns about the possibility of and initial processing to determine no later than 72 hours after determining indefinite detention, family separation, whether such a UAC may be permitted that the minor is a UAC.’’ This strictly expanding the possibility of placing to withdraw his or her application for conforms to the TVPRA. See 8 U.S.C. UACs in secure detention, failure of the admission. As stated in the NPRM, a 1232(b)(3). The emergency and influx proposed rule to adequately address UAC is provided with a Form I–770 exceptions are only applicable to minors conditions in CBP processing centers, Notice of Rights during this screening who are not UACs. The only exception and the treatment of apprehended and initial processing. UACs from non- to the 72-hour timeframe for the transfer minors. contiguous countries are not permitted of UACs from DHS to HHS (other than Some commenters found § 236.3(g)(1) to withdraw their application for those processed in accordance with 8 problematic because it does not provide admission under the TVPRA, but are U.S.C. 1232(a)(2)) is exceptional a timeframe for the processing of nevertheless provided with a Form I– circumstances. children immediately following 770 Notice of Rights. apprehension. A commenter asserted DHS disagrees with the commenter Changes to Final Rule that the use of ‘‘as expeditiously as that the proposed regulations violate In response to commenters’ concerns possible’’ rather than a specific Article 9 of the ICCPR. Detention under about the operation of 8 U.S.C. timeframe will result in the indefinite these regulations is in accordance with 1232(a)(2), DHS is amending the detention of children and violate the procedures established by law. See, e.g., proposed regulatory text in § 236.3(f)(1) protections afforded children under the sections 235, 236, and 241 of the INA, to clarify that UACs from contiguous International Covenant on Civil and 8 U.S.C. 1225, 1226, and 1231. countries are be treated in accordance Political Rights (ICCPR) Article 9. The Furthermore, all minors and UACs who with the TVPRA; specifically, if a UAC commenter also raised concerns about enter DHS custody are provided with a from contiguous country is not the requirement that a child must Form I–770, Notice of Rights and permitted to withdraw his or her request a voluntary departure or Request for Disposition. When a minor application for admission or if no withdraw their application for is transferred to or remains in a DHS determination can be made within 48 admission before they are informed detention facility, he or she is currently hours of apprehension, then the UAC about the possibility of administrative provided with a Notice of Right to will be immediately transferred to HHS. or judicial review. The commenter Judicial Review. Additionally, DHS is amending the asserted that a child has ‘‘no practical DHS notes that the notice is confusing proposed regulatory text in mechanism to assert his or her rights is some respects, because 8 U.S.C. § 236.3(f)(4)(i) regarding conditions of under the ICCPR until after they are 1226(e) broadly prohibits judicial transfer of UACs with unrelated adults. processed by DHS, yet the child can be review of custody determinations both The revisions better reflect current detained for an indefinite period prior in bond hearings and via parole. A operational practices and clarify that to processing.’’ regulation (and a form) cannot vest generally UACs will not be transported Another commenter objected to Federal courts with jurisdiction. DHS with unrelated detained adults. DHS has language in the proposed regulation accordingly will, in a future action,

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amend this form to more accurately facilities, and extremely cold are safe and sanitary and that are reflect the judicial review limits set temperatures, which are traumatizing consistent with DHS’s concern for their forth in 8 U.S.C. 1226(e). for children. Several commenters particular vulnerability. Facilities will Additionally, the commenter’s proposed that additional elements of provide access to toilets and sinks, statement that a child has ‘‘no practical custodial care following apprehension drinking water and food as appropriate, mechanism to assert his or her rights should be incorporated in § 236.3(g)(2) access to emergency medical assistance under the ICCPR until after they are of the rule, including adding the term as needed, and adequate temperature processed by DHS,’’ reflects a ‘‘bedding’’ to the listed elements and ventilation. DHS will provide misunderstanding of Article 9 of the facilities will provide; and striking the adequate supervision and will provide ICCPR. Article 9 does not grant an language ‘‘as appropriate’’ after ‘‘food contact with family members arrested individual the right to contest the and water’’ to avoid confusion, as food with the minor or UAC in consideration grounds for his or her detention before and water should never be withheld. of the safety and well-being of the minor he or she is detained. Several commenters also recommended or UAC, and operational feasibility. With respect to paragraph 12(A) of the the rule should include custodial Thus, DHS has, through this provision, FSA, DHS reiterates that all minors standards for architectural design, included the same terms used in the taken into DHS custody will be notified lighting, and mental health care FSA, with such changes as are required of rights, including a bond services. Other commenters asked that by the HSA and the TVPRA. redetermination hearing where DHS include provisions to address DHS also notes that CBP policies applicable. Section 236.3(g) of the final adequate temperature control in serve to implement these protections rule preserves the requirement of facilities that house children. and go beyond the requirements of the notification of rights using Form I–770, One commenter cited research and FSA and these regulations. Specifically, Notice of Rights and Request for experience with family detention CBP’s policy states that all individuals Disposition. All minors who are not centers in the U.S. that shows that who may require additional care or UACs who are transferred to or who access to quality medical, dental and oversight while in custody, including remain in DHS custody in removal mental health care is limited for minors and UACs, will be treated with proceedings will be given a Notice of detainees. Specifically, the commenter dignity, respect, and special concern for Right to Judicial Review, which notifies contended that preventative care and their particular vulnerability. TEDS also the minor of the right to seek judicial mental health services are often lacking, addresses the provision of all amenities review in appropriate circumstances. In and most detention centers relied on provided for by the FSA. For example, addition, DHS serves all aliens, expensive emergency room visits to TEDS provides that minors and UACs in including minors, with a custody provide medical care, often after delay, CBP custody have access to restrooms determination form that indicates increasing the detainees’ severity of and appropriate toiletry items (e.g., whether they have the right to seek a illness. The commenter also stated that toilet paper and sanitary napkins); have bond redetermination. These actions are the Infectious Disease Society of access to drinking water at all times; are consistent with the requirements of FSA America has already found outbreaks of provided with four meals daily; and paragraphs 12(A) and 24(A). chicken pox, scabies and other have access to milk, juice, and snacks at Comments. One commenter noted infections among detainees, and that all times. TEDS also provides that that the proposed rule failed to require detention facilities are lacking in minors and UACs are provided access to that every child be placed in the least practices of hygiene and infection basic hygiene items and clean bedding, restrictive placement in the best control, leading to conditions that will and that CBP makes reasonable efforts to interests of the child, as required by the fuel the spread of infections. provide showers (including soap and a TVPRA and subsequent HHS policies. One commenter also pointed out that towel) to minors and UACs approaching Response. DHS notes that this section contact with family members arrested at 48 hours in CBP custody. Additionally, of the regulations applies only to minors the same time should not be an issue CBP documents the provision of all and UACs when they are held in DHS because the family should all be housed required amenities, as well as welfare processing facilities immediately together and this section should reflect checks of all minors and UACs, in its following their initial arrest, and thus the concept of family unity during electronic systems of records. CBP also the TVPRA provisions regarding HHS’ apprehension and initial processing. documents that the temperature is placement of UACs do not apply. Response. DHS notes that the appropriate and that the cleanliness of Proposed § 236.3(g)(2)(i) states that proposed text of § 236.3(g)(2) is, in its hold rooms has been checked in its ‘‘consistent with 6 CFR 115.114, minors substance, identical to the existing electronic systems of record. and UACs shall be held in the least requirements in the FSA. Specifically, CBP also notes that it has recently restrictive setting appropriate to the paragraph 12A of the Agreement taken several steps to enhance the minor or UAC’s age and special needs, requires that ‘‘following arrest, the INS provision of medical care to minors and provided that such setting is consistent shall hold minors in facilities that are UACs in its custody. Specifically, CBP with the need to protect the minor or safe and sanitary and that are consistent currently provides medical screening UAC’s well-being and that of others, as with the INS’s concern for the particular and triage for all UACs and minors well as with any other laws, regulations, vulnerability of minors. Facilities will along the southwest border. Following a or legal requirements.’’ provide access to toilets and sinks, screening, any minor or UAC who Comments. Several commenters drinking water and food as appropriate, requires emergency medical care is raised concerns regarding conditions in medical assistance if the minor is in transferred to the hospital or other CBP processing facilities, stating that need of emergency services, adequate nearby medical facility for appropriate conditions are subpar to those outlined temperature control and ventilation, emergency treatment. in the FSA. Commenters identified a adequate supervision to protect minors DHS declines to add ‘‘bedding’’ to the lack of access to legal counsel, lack of from others, and contact with family list of items provided by facilities, as bedding, forcing children to sleep on members who were arrested with the that term does not appear and is not cement floors, open toilets, confiscation minor.’’ The text proposed in the NPRM defined in the FSA. DHS notes, of belongings, constant light exposure, at § 236.3(g)(2) provided that DHS will however, that generally CBP provides insufficient food and water, no bathing hold minors and UACs in facilities that clean bedding to all minors and UACs,

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and that the provision of bedding is access to adequate food and water). The country of his or her nationality in the documented in CBP’s electronic systems Juvenile Coordinator also conducts United States.’’ of record. Additionally, as noted above, reviews of juvenile custodial records as Comments. One commenter the TEDS standards address these topics part of this monitoring roles. CBP also recommended adding language that and more, and in many ways go over has Juvenile Coordinators in its field would keep minors together with the and above the requirements of the FSA, offices and sectors, who are responsible family members arrested with them, and these regulations. DHS also declines for managing all policies on the rather than simply providing contact; to delete the words ‘‘as appropriate’’ processing of juveniles within CBP and recommended adoption of a rule after ‘‘food and drinking water’’ since facilities, coordinating within CBP and governing housing minors with this is a reasonable limitation. The ‘‘as across DHS components to ensure the unrelated adults more closely mirroring appropriate’’ phrase is derived from expeditious placement and transport of the rules for UACs. The commenters FSA paragraph 12A, and might apply in juveniles placed into removal noted that housing UACs with unrelated a situation in which a minor or UAC is proceedings by CBP, and informing CBP adults upon apprehension is addressed in custody for a very short period of operational offices of any policy updates in the proposed rule but minors other time. related to the processing of juveniles than UACs are not mentioned in this Comments. One commenter (e.g., through correspondence, training section. The commenter stated that this recommended that the rule require that presentations). Moreover, CBP’s could be highly problematic, pointing to processing facilities not only be safe and Juvenile Coordinators serve as internal studies that have shown children sanitary but also provide a sense of and external agency liaisons for all commingled with adults are more likely comfort, including by prohibiting the juvenile processing matters. to commit suicide and to be physically use of wire fencing to separate youth CBP’s own Management Inspections or sexually assaulted. and by providing access to beds, Division (MID) also conducts visits to Several commenters raised concerns blankets, outdoor space, and comfort CBP facilities and monitors compliance that proposed language in 8 CFR items (e.g., stuffed animals that be taken with CBP’s policies. Additionally, CBP 236.3(g) stating that children will be with the child/youth when they transfer is subject to regular oversight and provided contact with family members to a licensed facility). inspection by CBP’s Office of only to the extent that it does not pose Response. The FSA requires that Professional Responsibility (OPR), DHS’ an ‘‘undue burden on agency facilities in which minors and UACs are Office of Inspector General, DHS’ Office operations’’ will weaken the protections held immediately following arrest be of Civil Rights and Civil Liberties, and against family separation and allow CBP ‘‘safe and sanitary’’ and reflect DHS’s the Government Accountability Office. to separate children from their families ‘‘concern for the particular vulnerability Such inspection and oversight helps if the agency is merely inconvenienced. of minors.’’ DHS’s short-term holding ensure that CBP facilities continue to One commenter recommended that the facilities, in which minors and UACs meet the FSA requirements and remain rule should provide in § 236.3(g)(1) that are held immediately following arrest, safe and sanitary for minors and UACs. every minor or UAC must receive are generally designed to hold Comments. One commenter noted assistance with contacting his or her individuals for 72 hours or less. See 6 that there is no mention in the rule of parent, legal guardian, and/or counsel. U.S.C. 211(m)(3). Thus, they are not a minor’s or UAC’s ability to contact his Another commenter objected to the designed for long-term detention, and or her consulate upon apprehension. provision that a child be provided do not provide many of the The commenter alleged that consistent contact with family members with characteristics of such long-term with the ABA UC Standards, upon whom the child was arrested ‘‘in detention. As explained elsewhere in apprehension, a child should consideration of the safety and well- this rule, DHS makes efforts to transfer immediately be informed, both orally being of the minor or UAC, and all minors and UACs out of such and in writing, in the child’s best operational feasibility.’’ The commenter facilities as expeditiously as possible. language and where applicable, dialect, claimed the reference to ‘‘operational Additionally, the TVPRA requires that of the right to contact the child’s parents feasibility’’ is not found in the FSA, DHS transfer all UACs to HHS within 72 and consulate. which requires facilities to provide hours absent ‘‘exceptional Response. Section 236.3(g)(1) codifies ‘‘contact with family members who circumstances.’’ Additionally, for the requirements that derive directly from were arrested with the minor’’ without duration of time that minors and UACs the FSA. This section, like Paragraph qualification.26 The commenter further do remain in CBP custody, CBP makes 12(A) of the FSA, applies to facilities in stated that this language is also not efforts to provide minors and UACs which minors and UACs are held during found in existing regulations covering with appropriate safe and sanitary their initial processing. Paragraph 12(A) juvenile and family detainees.27 The conditions, including hygiene products, of the FSA provides that, immediately commenter concluded that the language showers where possible, and the following arrest, minors be ‘‘provided conflicts with the FSA, as it allows the opportunity to obtain clean clothes. with a notice of rights.’’ And as agency to restrict children’s access to DHS notes that CBP facilities are also indicated in § 236.3(g)(1)(i), all minors their families for its own convenience, subject to several areas of oversight to and UACs who enter DHS custody are with no specification as to the bounds ensure compliance with CBP policy and provided a Form I–770, Notice of Rights of the vague term ‘‘operational with the FSA requirements. First, CBP’s and Request for Disposition. This form feasibility.’’ Juvenile Coordinator conducts regular informs the minor or UAC that he or she Response. DHS notes that, as visits to CBP facilities across the may contact a parent, close relative, or explained in the preamble to the NPRM, southwest border, both announced and friend. Thus, § 236.3(g)(1) codifies the ‘‘DHS’s use of ‘operational feasibility’ in unannounced, to monitor compliance requirements under the FSA, and no with the FSA requirements and with additional changes are required. DHS 26 FSA paragraph 12. CBP policy related to the treatment of also notes that existing regulations at 8 27 See 6 CFR 114.14 (allowing juveniles to be held minors and UACs in CBP custody CFR 236.1(e) provide that ‘‘every with adult family members ‘‘provided there are no safety or security concerns’’); 115.114 (allowing (including, for instance, determining detained alien shall be notified that he unaccompanied juveniles to be held temporarily whether facilities are safe and sanitary or she may communicate with the with non-parental adult family members when the and whether minors and UACs have consular or diplomatic officers of the agency determines it is appropriate).

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this paragraph does not mean ‘possible,’ circumstances. Some commenters situations in which it may be necessary but is intended to indicate that there commented that DHS failed to define to hold a UAC with an unrelated adult may be limited short-term the ‘‘exigent circumstances’’ that would for more than 24 hours. Any ‘‘exigent circumstances in which, while a minor allow it to house a UAC with an circumstances’’ would be largely or UAC remains together with family unrelated adult beyond 24 hours. The redundant of such emergency situations. members in the same CBP facility, commentator stated that allowing UACs Thus, the proposed regulation at providing such contact would place an to be housed with an unrelated adult for § 236.3(g)(2) is designed to be consistent undue burden on agency operations.’’ emergency or exigent circumstances with the existing DHS regulations on the 83 FR 45500. The preamble went to contradicts the FSA and endangers prevention of sexual abuse and assault provide several examples: ‘‘For children. in its facilities without diminishing any instance, if a family member arrested A few commenters stated that the key protections set forth in the FSA. with a minor or UAC requires short- provision allowing DHS to house UACs DHS also notes that the proposed term, immediate medical attention, CBP with unrelated adults for more than 24 regulation addresses only DHS custodial may be required to temporarily limit hours based on emergencies or exigent care of UACs immediately following contact between that family member circumstances is inappropriate and is their apprehension. Pursuant to the and the minor or UAC, in order to contrary to 6 CFR 115.14(b), which TVRPA (and consistent with the HSA), provide appropriate medical treatment. prohibits the housing of children with once an alien juvenile is determined to Or, CBP may have a legitimate law adults unless the child is in the be a UAC, DHS must transfer the UAC enforcement reason to temporarily limit presence of an adult family member. to the care and custody of HHS within contact between a minor or UAC and And a different commenter took issue 72 hours, absent exceptional accompanying family members, such as with the proposed rule’s distinction circumstances. when CBP decides it is in the minor or between UACs and minors when it DHS provides examples in the UAC’s best interest to interview all comes to housing UACs with unrelated regulations of when it may be necessary family members separately.’’ Id. adults for up to 24 hours because to hold UACs with unrelated adults for DHS reiterates its reasoning from the minors should also not have to be more than 24 hours, including during a NPRM that CBP provides contact housed with unrelated adults for more weather-related disaster or if an between the minor or UAC and than 24 hours. outbreak of a communicable disease Other commenters focused on the accompanying family members unless requires the temporary commingling of term ‘‘operationally feasible’’ for CBP is concerned about the safety of the the detainee population. These purposes of the requirement to separate minor or UAC or there is a legitimate examples confirm that any emergencies children from unrelated adults. Some law enforcement reason not to provide would address temporary and commenters argued that the failure to contact on a temporary basis. It is never unforeseen dangers or public safety a matter of inconvenience. The define the term rendered the regulation threats. DHS is unable to provide an proposed rule is much more detailed unconstitutionally vague. One exact length of time, beyond 24 hours, than FSA paragraph 12(A), which commenter requested that DHS and that it may be necessary to house a UAC requires that the juvenile be provided HHS clarify the percent of time they with an unrelated adult, as the length of contact with family members with expect it will be operationally feasible time will vary based on the particular whom he or she was arrested, and to successfully transport and hold UACs emergency warranting such a situation. consistent with both FSA paragraph 11 separately from unrelated adults. The However, DHS will not house a UAC and other DHS regulations on the commenter asked whether DHS and with an unrelated adult for any longer prevention of sexual abuse and assault HHS intend to rescind this policy and than is required based on the specific in its facilities. This provision takes into make it compliant with the FSA if they account the safety of the minor or UAC, find that UACs are not held and facts of the particular emergency. and acknowledges that there may be transported separately from unrelated Moreover, even under emergency some limited situations in which adults in most cases. circumstances, appropriate providing contact may not be in the Another commenter asserted that DHS consideration is given to age, mental minor or UAC’s best interests (e.g., the could dispense with contact with family condition, physical condition, and other accompanying family member has been members to accommodate ‘‘operational factors when placing UACs into space observed to physically harm the minor concerns’’ at a time when children need with unrelated adults. or UAC, or a minor or UAC alleges their family to insulate them from Concerns about recognizing an physical abuse by the family member). trauma and provide them comfort. exception to the 24-hour limit in an Additionally, the term ‘‘operational Response. The proposed regulation is ‘‘emergency’’ are unfounded. The feasibility’’ covers limited short-term designed to be consistent with the exceptions would only apply to the circumstances where providing such existing DHS regulations on the extent consistent with the existing DHS contact would place an undue burden prevention of sexual abuse and assault regulations on the prevention of sexual on agency operations. For example, if a in its facilities without diminishing any abuse and assault in DHS facilities at 6 family member requires short-term, key protections set forth in the FSA. The CFR 115.14(b) and 115.114(b). immediate medical attention, CBP may proposed regulation at § 236.3(g)(2) Similarly, the commenter’s concerns be required to temporarily limit contact contains the same limit as the FSA on about distinguishing between UACs and between that family member and the the amount of time UACs can be housed minors for this requirement is minor or UAC in order to provide the with an unrelated adult (no more than misplaced because the FSA’s provision medical treatment. There may also be 24 hours). The proposed regulation on the amount of time UACs can be legitimate law enforcement reasons to allows DHS to depart from this standard housed with an unrelated adult applies interview family members separately. in emergencies, to the extent consistent only to unaccompanied Flores class Comments. Commenters expressed with 6 CFR 115.14(b) and 115.114(b). members. See June 27, 2017 Order at 31, concern about the flexibility given to DHS has decided to remove the Flores v. Sessions, No. 85–4544 (C.D. DHS to hold and transport UACs reference to ‘‘exigent circumstances,’’ as Cal. filed July 11, 1985) (noting that separately from unrelated adults based DHS has already provided an ‘‘Paragraph 12A of the Agreement states on emergencies or exigent explanation of the types of emergency that upon apprehension, Defendants

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‘will segregate unaccompanied minors Another stated that family immigration comments. For example, one commenter from unrelated adults.’ ’’). detention should only be used as a last cited to a body of research linking the DHS also disagrees with commenters’ resort where necessary to protect the trauma of childhood detention with concerns about the term ‘‘operationally best interests of the child, and only adverse outcomes, and a collection of feasible’’ because that term does not following an individualized assessment articles that discusses the harm done to appear in the proposed regulatory text and judicial review. children from the toxic levels of stress concerning the amount of time a UAC With regard to the impact of family and disruption in normal development can be housed with an unrelated adult. detention on family units, numerous that are inherent in being detained in This term is addressed above, in the commenters stated possible effects U.S. custody. discussion of providing contact between could include emotional distress, Another commenter cited research to minors and UACs and family members damage to family stability, the show that 44 percent of asylum seekers with whom they were apprehended. undermining of a parent’s ability to in the United States were torture And the proposed DHS regulatory text appear as an authority figure and survivors, and that detention was likely at § 236.3(f) contains a prohibition on provide emotional support, and to compound the trauma already transportation of UACs with unrelated disruption of the parent/child bond, experienced by these individuals. adults in keeping with the FSA: A potentially leading to attachment issues. Several commenters noted that ‘‘UAC will not be transported with an Several commenters also noted that, detention is likely to re-traumatize unrelated detained adult(s) unless the while they support the notion of family mothers and children fleeing gender- UAC is being transported from the place unity, they disagree with unity being based violence. Some commenters cited of apprehension to a DHS facility or if created or maintained by family to the DHS Advisory Committee on separate transportation is otherwise detention. Many commenters described Family Residential Centers Report that impractical or unavailable.’’ the detention of family units as recommended DHS not detain families. ‘‘inhumane,’’ ‘‘immoral,’’ ‘‘cruel,’’ or One commenter suggested changes to Changes to Final Rule contrary to our country’s values. One the last sentence of the provision, ‘‘If DHS is amending the proposed commenter stated that the detention of DHS determines that detention of a regulatory text to remove the language family units is rooted in a white family unit is required by law, or is ‘‘exigent circumstances’’ in response to nationalist agenda. otherwise appropriate, the family unit public comments. DHS is also amending may be transferred to an FRC which is • Trauma the regulatory text to clarify that the a licensed facility and non-secure.’’ Form I–770 will be provided, read, or Comments. As a reason for their Specifically, the commenter suggested explained to all minors and UACs in a opposition to the detention of family changing ‘‘may be’’ to ‘‘shall be.’’ The language and manner that they units, numerous commenters stated that commenter suggested adding ‘‘as understand. the detention of families has serious and available’’ or ‘‘as reasonably possible’’ to long-lasting negative impacts on the 8. Detention of Family Units § 236.3(h) address a lack of space in FRCs. physical and mental well-being of • Summary of Proposed Rule children. Many commenters, including Indefinite Detention DHS proposed to clarify that DHS doctors, social workers, and Many commenters expressed concern may, pursuant to existing legal organizations specializing in medicine that detention of family units would authorities, maintain and detain family or mental health, listed numerous lead to prolonged or indefinite units together in ICE custody. The possible negative effects of detention on detention. For further discussion of this proposal also provided that DHS would children, such as: Trauma; topic, see section ‘‘Indefinite Detention transfer family units to an FRC if DHS developmental delays; anxiety; due to Alternative Licensing.’’ determined that detention of family depression; Post Traumatic Stress Response. DHS responses to the units is required. The terms contained Disorder (PTSD); regressive behaviors; issues of alleged indefinite detention in the proposed rule set out and clarify withdrawal; self-injury; suicidal and the trauma caused by detention are requirements that must be met for a ideation; nightmares; night terrors; bed- in the sections devoted to these topics family to be detained together in an wetting; delayed cognitive development; below. DHS believes that FRC. digestive disturbances; panic attacks; misconceptions about FRCs abound, clinginess; withdrawal; attachment and these misconceptions are reflected Public Comments and Response disorders; loss of appetite; and in the comments. Detention of family Comments. Some commenters noted educational delays. units in this context is related only to that there may be times when a child One commenter stated that parents civil immigration proceedings and not needs to be detained, such as when no who find themselves in this highly criminal charges. FRCs are non-secure, alternative exists that meets the needs of stressful situation are at risk of meaning that families are not physically the child and ICE’s security concerns. developing similar emotional problems, prevented from leaving the facility if But most commenters on this topic in addition to being less available and they wish. While leaving an FRC could expressed general opposition to the responsive to their children which, in result in significant immigration detention of family units. Many turn, can interrupt the natural consequences, the families are not in commenters discussed the negative attachment between children and prison and the decision to stay or go is impacts of detention on the well-being parents. One commenter, relying on their own. FRCs have classrooms for the of children, while some commenters such possible effects, stated that children’s education, cafeterias for also stated that family detention has detention of innocent children should family meals, and outdoor and indoor negative impacts on parents and the never occur in a civilized society, recreation areas. There are no cages, family unit itself. One commenter also especially if there are less restrictive prison cells, or prison bars. There are, stated that DHS has failed to justify options, such as parole, because the risk however, windowed bedrooms with detaining children because of a of harm to children simply cannot be plenty of space for beds, chests of misdemeanor crime allegedly justified. drawers, and tables. There are also committed by a parent and that it must Several commenters relied on communal areas with couches and exhaust less restrictive alternatives. research in this area to support their television sets. There are entire medical

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wings devoted to caring for the families, multi-sector, multidisciplinary reasonably possible’’ also accounts for a whether it is their initial intake workforce of over 1,100 employees that lack of bedspace. screening where they are screened for include U.S. Public Health Service Changes to Final Rule communicable diseases, high blood (PHS) Commissioned Corps officers, pressure, and diabetes, or emergency Federal civil servants, and contract DHS declines to change the proposed situations where their trip from their health professionals. IHSC provides regulatory text in response to public home countries to the United States has medical case management and oversight comments. caused them severe harm that requires of detainees housed at non-IHSC staffed 9. Detention of Minors Who Are Not hospitalization. ICE’s Juvenile Family detention facilities and also oversees the UACs in DHS Custody § 236.3(i) Residential Management Unit (JFRMU) management of off-site specialty and is responsible for the ICE Family emergency care services for all detainees Summary of Proposed Rule Residential program, and it periodically in ICE custody. The Departments proposed that a revises the Family Residential IHSC utilizes health care standards minor who is not a UAC and not Standards that govern the program, drawn from the American Correctional released by DHS, may be held in DHS consistent with best practices. Association (ACA), the National custody where he/she is detained in the FRCs serve to encourage and Commission on Correctional Health least restrictive setting appropriate to strengthen family interaction and Care (NCCHC), the ICE National the minor’s age and special needs. growth. Parents are expected to be Performance-Based Detention Standards Additionally, the proposal would responsible for their children and are (PBNDS), as well as the ICE Family permit minors to be placed temporarily encouraged to take an active role in Residential Standards to ensure that in a non-secure licensed facility until their development. FRC staff counsel quality, culturally competent, and they are released. and mentor parents in appropriate non- trauma-informed care is provided to Section 236.3(i)(1) proposed to physical behavior management detainees in ICE custody. These require that a minor who is not a UAC techniques. Family units normally are standards support IHSC’s internal be transferred to state or county juvenile assigned bedrooms together to further quality improvement program. detention facilities, a secure DHS familial bonds. Centers provide age- Moreover, IHSC employs staffing detention facility, or a DHS-contracted appropriate play structures and models at its facilities tailored to the facility having separate recreational equipment for all residents. population and needs of the community accommodations for minors if the minor Mental health providers conduct weekly under its care. IHSC’s mandate to meets certain criteria, including the wellness checks on all juvenile provide direct care for ICE detainees residents. If additional treatment needs minor is charged with, is chargeable obligates IHSC to deliver individualized with, or convicted of a crime or has are identified during these checks, care that must be properly documented separate therapy sessions may also be been charged with, is chargeable with, in medical records for the well-being of is the subject of delinquency established. Additionally, mental health the detainees. IHSC takes seriously all providers are available to residents for proceedings or has been adjudicated as allegations of inappropriate health care adult counseling and family counseling delinquent, committing, or making and investigates these allegations to needs. FRCs are not staffed by armed credible threats to commit, a violent or remedy any identified deficiencies and guards or uniformed ICE officers, rather malicious act while in custody or while ensure the integrity of the care it they are staffed by facility counselors. in the presence of an immigration FRCs also provide liberal access to provides to ICE detainees. officer; engaging, while in a licensed legal counsel and non-profit groups With respect to the report of that the facility, in certain conduct that is providing legal services. Interpreter DHS Advisory Committee on Family unacceptably disruptive of the normal services are available 24/7 via Residential Centers, DHS notes that the functioning of the licensed facility; telephone. Private meetings rooms are report was issued by a committee of being an escape risk; or for the minor’s available as is direct communication private citizens acting outside the scope own security. with the immigration courts. of the committee’s charter. The report Section 236.3(i)(2) proposed to FRCs also afford parents the ability to states that any detention of families require DHS to place a minor in a less be parents; they exercise full parental ‘‘should be only long enough to process restrictive alternative if such an rights. FRC staff do not make any a family for release into alternatives to alternative is available and appropriate decisions for the parents. If the parents detention.’’ But the report ignored in the circumstances, even if the do not want their children to participate DHS’s legal authority to detain aliens in provisions of § 236.3(i)(1) apply. in group activities, it is their choice. removal proceedings when legally Additionally, it would require that the Similarly, if they do not want their required and when appropriate to secure facilities used by DHS to detain children to be part of the individual or ensure the alien presents himself for non-UAC minors shall also permit group mental health counseling removal. attorney-client visits pursuant to sessions, it is the parent’s choice. FRCs While DHS respects the views of the applicable facility rules and regulations. give parents and their children a chance writers of the report, alternatives to Section 236.3(i)(3) proposed that, to acclimate to the United States, get detention (ATD) do not provide a means unless a detention in a secure facility is their bearings, find legal counsel, to effectively remove those who subject otherwise required, DHS facilities used prepare their immigration cases, and in to a final removal order. For further for the detention of minors would be many cases be released after a finding of discussion of this topic, see section on non-secure. credible fear. Alternatives to Detention. Section 236.3(i)(4) proposed that all Medical issues at FRCs are managed Lastly, DHS does not concur with non-secure facilities used for the by the ICE Health Service Corps (IHSC). commenters’ suggested changes to the detention of non-UAC minors abide by The IHSC is responsible for providing text of the regulation. The word ‘‘may’’ the standards for ‘‘licensed programs.’’ direct care or oversight of care at FRCs in the proposed regulation accounts for At a minimum, these standards must to include medical, dental, and the possibility that family units may be include, but are not limited to, proper behavioral health care, and public released at the time of encounter. The physical care, including living health services. IHSC is made up of a language in the regulation that states ‘‘as accommodations, food, clothing, routine

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medical and dental care, family preserve and protect confidential practices, but codifying them through planning services, emergency care records; and regular record keeping and regulatory text limits DHS’s operational (including a screening for infectious reporting. The commenter flexibility to update and improve these disease) within 48 hours of admission, acknowledged that these provisions are practices as necessary. a needs assessment including both found in other parts of the proposed DHS does not believe there is a need educational and special needs rule concerning children in HHS for advisals at FRCs regarding a minor’s assessments, educational services custody, but asserted that there is no right to request voluntary departure in including instruction in the English reason for a distinction between ‘‘alien lieu of deportation. This is true because, language, appropriate foreign language minors’’ and ‘‘UACs’’ when it comes to DHS acknowledges parental rights for reading materials for leisure time these issues. family units housed at FRCs and reading, recreation and leisure time Response. This section is specifically families are likely to make such activities, mental health services, group about ICE custody of minors once a decisions as a unit. counseling, orientation including legal decision has been made not to release a With respect to acculturation assistance that is available, access to minor, and the minor is not a UAC. The programs, DHS notes that the only religious services of the minor’s choice, standards described are taken from difference between the FSA and the visitation and contact with family Exhibit 1 of the FSA. The proposed language is that the FSA members, a reasonable right to privacy individualized plans, as one commenter requires that the acculturation services of the minor, and legal and family calls them, are in § 236.3(i)(4)(iii), contribute to the ability to ‘‘live reunification services. Additionally, this which mirrors Exhibit 1, paragraph 3 of independently and responsibly,’’ section would require DHS to permit the FSA. Family reunification whereas the proposed language requires attorney-client visits pursuant to provisions are not needed in this part of that the services would contribute to the applicable facility rules and regulations these regulations because minors in ICE abilities needed ‘‘as age appropriate.’’ in all licensed, non-secure facilities in custody are already housed with their After many years of experience, DHS which DHS places non-UAC minors. parents or legal guardians. Similarly, has found that what a five-year-old Section 236.3(i)(5) would permit case management services for minors in needs to know about America is ‘‘licensed, non-secure facilities’’ to ICE custody are not needed the same different from what teenager needs to transfer temporary physical custody of way they are needed for UACs in HHS know to successfully integrate into minors prior to securing permission custody because minors in ICE custody society. from the Government in the event of an are supervised by their parent or legal DHS agrees to add the prohibitions in emergency, provided that they notify guardian. The parent or legal guardian the FSA against corporal punishment, the Government as soon as practicable, is responsible for seeking any services humiliation, mental abuse, and punitive but in all cases within 8 hours. or care that the minor requires while in interference with the daily functions of DHS custody and fulfill the role of a living, such as eating or sleeping to the Public Comments and Response case manager in seeking a continuum of regulation. DHS notes that these Comments. Some commenters argued care and services such as pediatric care, prohibitions have always been that the proposals would eliminate mental health services. incorporated into personnel policies important provisions in the FSA, DHS disagrees with the commenter and contract vehicles with contractors including a guarantee that the standards that this regulation does not provide who run ICE facilities. There are also would incorporate state welfare laws services in a manner that is sensitive to mechanisms in place to monitor for and the requirements to provide the age, culture, native language, and such abuses. But DHS will add these acculturation and adaptation services, complex needs of each minor. DHS has provisions into the text of the regulation provide family reunification services; to put numerous programs in place since in response to commenters noting a lack provide services in a manner that is the FSA was signed to take into account of specific language addressing these sensitive to the age, culture, native such needs. For example, it can issues in the proposed text. Such language, and complex needs of each generally provide interpretation services conduct is obviously inappropriate and minor; to provide information regarding 24 hours a day via telephone. Further, has no place in any DHS facility. the right to request voluntary departure DHS abides by language access policies in lieu of deportation; to create an that comply with the Executive Order Safety (§ 236.3(i)) individualized plan for each minor that 13166, Improving Access to Services for Comments. Several commenters is tracked through a case-management Persons with Limited English stated that there are numerous system; to maintain protections to keep Proficiency, although DHS declines to architectural layout and design minor’s personal information codify these language access policies in problems with the facilities used to confidential and avoid unauthorized regulation in order to maintain detain minors that would lead to an disclosures; and to maintain records and necessary operational flexibility. increase in injuries. DHS medical make regular reports to INS to ensure Similarly, DHS declines to codify experts and non-profits reported compliance with the FSA. through this regulation any additional of instances of severe finger injuries One commenter stated that the commenters’ suggestions: Creating resulting from the closure of heavy § 236.3(i)(4) omits several provisions an individualized plan for each minor doors in a converted prison used as a that were standards in the FSA, that is tracked through a case- family detention center. A few including family reunification services; management system; maintaining commenters stated that the facilities the prohibition of ‘‘corporal protections to keep minor’s personal were likely to be inadequate because punishment, humiliation, mental abuse, information confidential and avoid they would be hastily constructed. or punitive interference with the daily unauthorized disclosures; and Several commenters also stated that the functions of living, such as eating or maintaining records and making regular facilities often lack sufficient medical sleeping;’’ the development of a reports to DHS to ensure compliance space and noted that in one case a ‘‘comprehensive, realistic individual with the FSA. Technology advances, gymnasium was used as an ad hoc plan for the care of each minor,’’ privacy laws, and reporting over the last overflow medical space. coordinated through a case management 20 years have now made these Several commenters stated that there system, which should be safeguarded to suggestions standard operating are not standards that limit the number

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of room occupants or prevent minors participate in annual training related to include a provision) for a periodic from sharing a room with unrelated PREA and sexual abuse and prevention reassessment of a minor’s placement in adults and/or adults of the opposite initiatives. a secured facility at least every 30 days, gender, which increases the risk of child as required by the TVPRA and a Secure Facilities (§ 236.3(i)(1) and (2)) abuse. Several commenters detailed that provision for independent review of a in current FRCs, families are typically Comments. Several commenters placement decision that satisfies due placed in rooms that accommodate six expressed concern that factors proposed process requirements. people, which results in children in the regulations for determining A few commenters wrote that studies sharing rooms with unrelated adults, whether a child belongs in secure show that LGBT youth face harsher including sleeping, dressing, and using detention are overly broad, vague, or do penalties when engaging in the same the restroom without adequate privacy. not sufficiently incorporate the terms of behavior as their straight and cisgender Additionally, one commenter noted that the FSA. One commenter wrote that this counterparts, and that therefore the most space in detention facilities are section is in conflict with the TVPRA’s proposed rule’s inclusion of reserved for mothers and young rules for when the government may ‘‘chargeable’’ offenses is more likely to children, so fathers and older siblings place a child in secure detention, subject LGBT youth to placement in are often separated from their families. section 235(c)(2) of the TVPRA, because secure facilities. One of the commenter Several commenters commented that it broadens the criteria under which a also wrote that including ‘‘engagement placing children in detention is child may be placed in a secure facility in unacceptably disruptive behavior that inherently abusive, that children are at beyond the two factors contained in the interferes with the normal functioning’’ an increased risk of physical, verbal, TVPRA. The commenter stated that it is of the shelter as a chargeable offense mental, and sexual abuse in detention, inadequately clear what would will likely lead to placement of more and cited reports of sexual or physical constitute a ‘‘pattern or practice of LGBT in secured facilities, because abuse in detention facilities. One criminal activity’’ for a minor under this studies have shown that in the juvenile commenter referenced a guard at the regulation, that the term ‘‘probable justice context LGBT youth are more Berks facility who was convicted of cause’’ is too vague, and the agencies are likely to face criminal consequences for raping a woman in front of her three- not able or qualified to make such a engaging in consensual sexual activity year old son. One commenter referenced determination. The commenter also than straight or cisgender youth, and a ProPublica investigation that found argued that the language should include also that such conduct may be patterns of abuse of immigrant children the FSA’s list of examples of isolated considered ‘‘unacceptably disruptive in Federal custody. and nonviolent offenses and petty behavior’’ in detention facilities. These Response. ICE facilities are inspected offenses that would not rise to the level commenters also wrote that the for safety by state and Federal of justifying secure detention and its placement of more LGBT youth in inspectors. The examples put forth by required finding that the child’s action restrictive settings would increase the commenters of injuries sustained by involved violence against a person or vulnerability of those minors to abuse. children are isolated incidences and not the use or carrying of a weapon. One commenter wrote that the a pattern from unsafe conditions. DHS Several commenters wrote that proposed rule’s omission of medium is acutely aware of safety standards and § 236.3(i) affords an inappropriate level security facilities as an alternative ensuring that anyone in DHS custody, of discretion to DHS and shelter staff in detention facility is in violation of the but especially children, are housed in determining a minor’s placement in a FSA. The commenter noted that safe and sanitary conditions. With secure facility. The commenters stated paragraph 23 of the FSA requires respect to housing at ICE facilities, DHS that this section provides no clarity as medium security facilities as one notes that it has systems in place to to what would constitute an alternative in certain circumstances, but ensure the safety of the minors, such as unacceptable level of disruption, how or that the proposed rule states that the ‘‘Standards To Prevent, Detect, and on what basis staff will make the because DHS only operates secure and Respond to Sexual Abuse and Assault in dangerousness determination, and non-secure facilities, a definition for Confinement Facilities’’ (PREA) which party will be responsible for medium security facilities is regulations and housing classifications making the determinations. One unnecessary. The commenter believed that use restrictions by age and gender commenter recommended deleting the proposed rule should be amended in to inform the placement of families. provisions (i)(1)(i), (ii), (iv), and (v) as order to implement the FSA’s terms. Children remain in the care of their unacceptably broad and arbitrary Other commenters argued for parents while housed at FRCs. language and noted that similar additional provisions that should have Regarding the commenter’s reference language included in the FSA has been been included relating to the placement to the incident at Berks, DHS followed interpreted by immigration officers to of children in restrictive settings. This the Prison Rape Elimination Act of 2003 allow placement of a child in secure included a proposal that in determining (PREA) protocol and other applicable detention for minor matters such as placement in a secure facility, threats policies to appropriately address the shouting or smoking a cigarette. With from a juvenile be ‘‘credible and situation. The guard involved was respect to the language at (i)(1)(vi), the verified’’ (as opposed to just credible immediately terminated from his commenter recommended that the threats as discussed in the proposed position and ultimately prosecuted for proposed rule add a separate provision rule). Further, one commenter was his crime. ICE fully cooperated with that when a minor is at a demonstrated concerned that ‘‘disruptive behavior’’ is local law enforcement in all stages of risk of harm from smugglers, traffickers, too subjective as a criterion for the investigation and prosecution of the or others who might seek to victimize or placement in a facility and should be case. DHS strives to ensure that nothing otherwise engage him in criminal, replaced. Additionally, one commenter remotely similar ever occurs in its harmful, or exploitative activity, the proposed that secure placements should facilities. minor shall be placed in the least include the consultation of a mental DHS notes that all ICE facilities, restrictive developmentally appropriate health specialist. including FRCs, are subject to PREA placement consistent with his safety Response. As explained in the NPRM, regulations. DHS also has several and the safety of others. A few the proposed regulation reframed the policies on point and requires staff to commenters stated that the rule must FSA requirements for placing a child in

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a secure facility from a negatively alternatives are available. Thus the rhythms, and causes loss of muscle worded list to an affirmatively worded paragraph, by its terms, does not require strength and inflammation. One list. The FSA says that the provisions DHS to use medium security facilities commenter reported that she had twice ‘‘shall not apply’’ in many instances. for this purpose. DHS abides by the toured the Tornillo Port of Entry Shelter The proposed rule explains exactly criteria of the FSA when determining and witnessed young children suffering when the provisions will apply. Not whether a minor should be placed in a from separation anxiety and other only was this done for clarity, but secure facility. Those requirements are negative mental and physical effects due because the former INS and now DHS codified in regulation through this final to incarceration and separation from have found over 20 years of practice, rule. their families. Two DHS medical that the FSA provisions are confusing professionals who had inspected Non-Secure (§ 236.3(i)(3)) enough that they may, in fact, result in existing facilities reported instances of placing more children in secure Comments. A commenter stated that neglect of children caused by failure to facilities than DHS believed should be the Federal Government should not give assess or accommodate the nutritional subject to such provisions. DHS has States the responsibility to determine and medical needs of child detainees, been using this limited interpretation to whether their detention facilities are including an infant who lost a third of use secure placement even though a non-secure because this will mean that its body weight due to an untreated different reading of the FSA may have the definition of a non-secure facility disease, children vaccinated with adult resulted in more secure placements. may vary state by state. doses, and children not being visited by DHS also notes that the FSA did not Response. FSA paragraph 6 requires a a pediatrician in a timely manner.28 An define probable cause and neither did licensed facility to be ‘‘non-secure as immigration attorney commented that the proposed regulation, because this is required under state law’’ and licensed her client’s nine-month old infant was a legal term of art that is already well- by an appropriate State agency. The not treated for pneumonia for over two defined in case law and does not need proposed regulations generally mirror days and that the mother and infant to be defined in regulation. DHS also the FSA. For additional discussion of were not given any warm clothing and disagrees with one commenter’s the definition of non-secure, please see fed only three bologna sandwiches in a assertion that the secure placement the non-secure definition in Section B.2. two-day period, which the child could provisions conflict with the TVPRA’s Definitions. not eat. Another commenter stated that requirements. Section 235(c)(2) of the Standards (§ 236.3(i)(4)) in the Berks, Pennsylvania, facility, TVPRA applies specifically to UACs, infants had been sent to the emergency and does not apply to the minors in Comments. Multiple commenters stated that the proposed regulations room due to dehydration. Several DHS custody who are not UACs. commenters stated that there had been One commenter brought up the would result in inadequate conditions that were neither safe nor humane for misconduct at existing government possible disparity in treatment for LGBT facilities, and cited a court order and a youth. Specifically, this commenter children. Several commenters stated that the proposed standards failed to news report stating that facilities had presented data that LGBT youth are provided medication to minors without more likely to be charged with crimes meet the FSA standards for adequate food, water, and medical care and that parental consent, including because they are more likely to get into psychotropic drugs, given psychotropic altercations due to their LGBT status. the FSA standards should be retained. Some commenters reiterated the Federal drugs disguised as vitamins and forcibly DHS takes all of this into consideration, injected minors with sedatives. and as stated above uses its discretion Government voluntarily entered into the Commenters cited two DHS experts who to ensure that no one is placed in secure FSA, which requires that facilities reported that one facility was using facility that does not need to be in one. provide children in their custody with medical housing for punitive DHS believes that the proposed text access to sanitary and temperature- segregation of families and children, rewording this provision actually lowers controlled conditions, water, food, which according to the commenters the chance for LGBT youth to be placed medical assistance, ventilation, and violates the standard of care for any in secure facilities, rather than adequate supervision, and contact with family members and that facilities detained person. increasing it. Several commenters objected to the DHS declines to implement one ensure that children are not held with proposed regulations on the ground that commenter’s suggestion that threats be unrelated adults. they would permit facilities to deny ‘‘verified’’ in addition to ‘‘credible.’’ The Numerous commenters raised language of the FSA permits detention concerns about reports of children access to food, water or medical care in in a secure facility for ‘‘credible suffering from subpar conditions and the event of an emergency. These threats.’’ Implementing an additional abusive treatment in detention centers. commenters stated that emergency food requirement that the threat be ‘‘verified’’ One commenter argued that existing and water should be readily available in imposes a vague, unduly restrictive facilities fail to comply with nutritional advance of such emergencies and that requirement upon DHS officers that is standards of the FSA and that families the regulations should be amended to not otherwise required under the law often do not have access to adequate require provision for the basic needs of and could ultimately place other minors food, water, or clothing. Some minors, regardless of whether there is an at risk. commenters asserted that the current emergency. One commenter encouraged DHS disagrees with one commenter’s detention centers fail to provide basic DHS to ensure that meals meet nutrition assertion that FSA paragraph 23 necessities, with children being unable standards established by the U.S. requires the use of medium security to sleep from the lights shining all night, Departments of Agriculture and Health facilities as part of DHS operations and a lack of bedding, open toilets, being and Human Services. The commenter that DHS is accordingly failing to crammed into cages, icy temperatures said that breast-feeding infants should implement the terms of the FSA by not and a lack of pediatricians, child and continue to have access to milk from using medium security facilities. The adolescent psychiatrists and pediatric 28 Dr. Scott Allen and Dr. Pamela McPherson, purpose of FSA paragraph 23 is to nurses. Some of these commenters Letter to the Senate Whistleblowing Caucus, July ensure that minors are not placed in a stated that constant illumination causes 17, 2018, https://www.whistleblower.org/sites/ secure facility if less restrictive sleep deprivation, affects circadian default/files/Original%20Docs%20Letter.pdf.

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their mothers in all situations and DHS Professional Responsibility, the DHS provide adequate medical care because should identify those with special OIG) for investigation and appropriate the facilities lack the necessary health care needs and to provide action. interpretation services for non-English appropriate treatment according to Regarding comments related to language speakers. Several commenters evidence-based guidelines for care. emergencies, DHS notes that DHS noted that DHS has had difficulty Response. DHS proposed to adopt the facilities are equipped to provide bare providing language services for detained substantive standards of FSA Exhibit 1, essentials during emergencies; however, individuals, especially those that speak and thus DHS disagrees with the if evacuation is warranted during indigenous languages and that even commenters’ characterization that the weather-related or other situations, it telephonic translation has not been proposed standards fail to meet the may become necessary to abandon available in emergency situations. These requirements for food, water, and everything and move minors and UACs commenters explained that without medical care required by the FSA. DHS to safety, which may include not adequate interpretation services, proposed simply to adopt the providing them with a meal or snack at individuals will be unable to properly substantive standards of FSA Exhibit 1. the designated time. The FSA does not communicate with the medical DHS notes that several of these speak to the issue of meals during professions or understand their medical comments appear to misunderstand the emergencies. It only spoke to the ability situations. Additionally, several different types of facilities that are used to transfer children during an commenters pointed out that in to house minors by different emergency. The proposed regulations emergency situations, there is no components of DHS as well as its sister speak to the same provisions during reliable mechanism to allow detention agencies. emergencies, recognizing that true center staff members to communicate DHS reiterates that these standards in emergencies are fluid and it is thus effectively with all detainees. § 236.3(i)(4) apply to the non-secure, difficult to codify specific requirements Response. As stated above, DHS has licensed facilities used for housing in regulations in advance. put systems in place to provide family units—FRCs. At least some of the Regarding the comments about the appropriate language services for comments, however, appear to describe use of psychotropic drugs, DHS notes communications with minors. Whether conditions at CBP facilities, which that the news articles mentioned it is during an emergency or during aliens may pass through during initial referred to allegations against HHS. HHS normal business operations, DHS processing when first encountered. emphasizes that the primary mission typically is able to get the needed These facilities are not required to abide and daily commitment of its UAC interpreter services very quickly and by the same Exhibit 1 standards under Program is to safeguard the health and efficiently. the FSA, which § 236.3(i)(4) wellbeing of children in our custody incorporates. For instance, CBP and care. HHS does not condone Provision of Medical Services processing facilities are very different medicating a child for punitive reasons. (§ 236.3(i)(4)(ii)) from ICE FRCs. They operate 24/7 and All ORR staff and contractors engaged in Comments. Several comments focused thus need to have lights on at all times. the direct care of UACs are mandated on deficiencies in the existing and These CBP facilities may also have reporters with the expectation that they proposed provision of medical services. temporary holding areas that are will immediately seek to protect any A medical doctor commented that the divided up that help separate minors UAC in our care from such harm and standards should include specialized and UACs from unrelated adults for the report to law enforcement and other training of medical professionals and safety and protection of the children. appropriate authorities any allegation of staff due to the unique and complex Regardless of facility type, all DHS abuse. Many UACs have endured problems present in a detention setting facilities (including CBP and ICE extraordinarily challenging and with children, including language facilities) will continue to abide by the traumatic childhood experiences that barriers, limited resources, and lack of applicable standards that are consistent can manifest into mental illnesses— information about previous care. One with the FSA, which are substantively whether acute or chronic. In some cases, commenter noted that there is no incorporated into these regulations. UACs are diagnosed and prescribed mechanism for health professionals to Additionally, as described above, all psychotropic medication by licensed regularly monitor the conditions in DHS DHS facilities are subject to inspection psychiatrists. Furthermore, ORR only facilities and their appropriateness for and monitoring by bodies such as the authorizes UACs to receive children. Another commenter stated DHS OIG, DHS CRCL, and the GAO. psychotropic medication to treat the that detained minors are not given CBP also has various internal methods specific diagnosis identified by licensed access to adequate or appropriate for monitoring compliance with mental health professionals. In cases immunizations. One commenter stated requirements that derive from the FSA, where ORR is able to locate and that medication was confiscated and including the requirement that agents correspond with a UAC’s parent or legal that limited medical screenings are and officers document the provision or guardian, ORR informs the parent of the conducted by non-medical staff, and availability of all those requirements, as UAC’s diagnosis, seeks their input on another commenter observed that DHS well as monitoring and inspection by the course of treatment, and obtains has been unable to provide adequate CBP’s Juvenile Coordinator and CBP’s their consent to administer medication. observation of minors with suicidal MID and OPR. ORR care provider facilities are required tendencies or screening of minors for Regarding the comments relating to to abide by state law. State law regulates trauma. Still another commenter specific allegations of mistreatment and the facility and mental health objected that the proposed regulations neglect of individuals in DHS custody, professionals’ usage of psychotropic fails to require trauma informed care without sufficiently detailed medication as well as the manner and programming and to require facilities to information DHS is unable to investigate reasons for administering the screen for trauma, requirements the or otherwise substantiate these claims. medication. commenter viewed as essential to DHS takes all allegations of misconduct providing adequate medical care to seriously, and all allegations are referred Interpreting Services (§ 236.3(i)(4)) individuals. to the appropriate investigative entity Comments. Several commenters One commenter stated that the (e.g., the ICE and CBP Offices of stated that FRCs would be unable to proposed regulations create an

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administrative process that is for family units. They provide age appropriate to the minor or UAC’s age inconsistent with the health needs of appropriate vaccines and care for minor and special needs. Title 8 CFR infants and young children because illnesses. FRCs refer any emergent or 236.3(i)(4) requires that facilities detention facilities are inadequately serious cases to hospitals for care as conduct a needs assessment for each staffed with medical, mental health, and needed. Medical staff also make minor, which would include both an nutrition professionals. This commenter referrals to specialists as appropriate. educational assessment and a special cited to instances of neglect of infant Since parents are housed with their needs assessment. Additionally, 8 CFR and children’s nutritional needs. children at FRCs, they can make 236.3(g)(1) requires DHS to provide Additionally, this commenter cited decisions regarding the care and minors with Form I–770 and states that articles regarding the benefits of treatment children receive at FRCs. the notice shall be provided, read, or breastfeeding, expressed concern that Minors with special needs are evaluated explained to the minor or UAC in a detained infants may lose access to in accordance with the FSA. In language and manner that he or she breastmilk because of a breastfeeding addition, individuals with disabilities understands. These provisions ensure mother’s lack of access to a breast are treated in accordance with specific that a minor or UAC’s special needs are pump, supplemental foods that ensure a laws and policies that provide for the taken into account, including when breastfeeding mother can produce provision of reasonable determining placement. enough breastmilk, and complimentary accommodations. See the section titled In addition to these provisions, ICE foods that assist the infant with the ‘‘Standards for Minors with Disabilities’’ has policies and regulations in place transition to solid food. immediately below for a more detailed that protect individuals with disabilities Several commenters stated that while response. ICE detention facilities are legally and implement section 504 of the required to act affirmatively to prevent Standards for Minors With Disabilities Rehabilitation Act of 1973. For example, disability discrimination, minors with (§ 236.3(i)(4)(iii)) 8 CFR part 15 prohibits discrimination disabilities in detention centers have Comments. Several comments were against individuals with a disability, not been consistently provided submitted concerning the standards of and requires that DHS facilities be appropriate accommodations, care of minors with disabilities. Some accessible. In addition, specific policies specialized medical care necessary to commenters stated that the proposed prohibit discrimination and address treat minors with disabilities and regulations do not contain enough how detainees with a disability may be chronic health problems is nonexistent, guidance regarding the consideration of provided with a reasonable and other critical services such as disability as part of placement accommodation. The Family Residential physical, occupational, and speech determinations for children, and that Standards require that minors have an therapy and other early interventions requiring a psychologist or psychiatrist Initial Education Assessment completed are not generally available. These to determine whether a child is a danger within three days of their arrival at the commenters note that these minors are to themselves or others is too little, too facility. Through this process, minors particularly vulnerable, particularly late to protect those with disabilities. with learning disabilities are identified when separated from their parents they One commenter wrote that the proposed and provided with an Individual lose their primary caregivers who rule should take into account studies Education Program and access to special possess knowledge of their health suggesting that youth with disabilities education services. problems and the care they need. One in secure facilities are at high risk of Education (§ 236.3(i)(4)(iv)) commenter noted that there are reports unmet health needs, failure to provide of children with disabilities being appropriate accommodations, and Comments. Multiple commenters restrained or sent to psychiatric harmful conditions, including use of stated that the proposed regulations hospitals or secure facilities because of restraints and solitary confinement. would fail to provide adequate behavioral issues that they cannot Another commenter stated that few educational opportunities for minors control except with proper medical care. children, if any, are screened for and that placing minors in detention One commenter wrote that long-term disability-related issues upon transfer would negatively impact their detention of alien children constitutes a from ICE to ORR custody, and a educational development. A few serious risk for infection disease and different commenter expressed concern commenters citied multiple studies to that those coming from particular that the proposed rule fails to guarantee show that long-term detention of any geographic regions or at-risk special education for children with form, even with a parent, has lasting populations are more prone to serious, disabilities, in conflict with the U.S. negative effects on learning and and highly infectious, diseases such as Supreme Court case Plyer v. Doe, 457 development of minors, and especially tuberculosis and pneumonia. This U.S. 202 (1982), and The Individuals young children.29 Several commenters commenter wrote that a minimum with Disabilities Education Act. stated that minors in detention facilities standard of care in a detention setting Response. The proposed regulatory are not receiving appropriate and requires administration of appropriate language requires DHS and HHS to challenging coursework that align with screening tests (including for consider a minor’s special needs, state or local educational standards, and tuberculosis, pneumonia, and sexually including provisions requiring as a result typically are unable to make transmitted diseases), interpretation and consideration of special needs when meaningful academic progress. One patient follow up for at-risk individuals, determining placement. For example, 45 commenter stated that children should and sufficient resources for separation CFR 410.208 states that ORR will assess not be deprived of education during or isolation of potentially infectious each UAC to determine if he or she has detention because that would result in individuals. special needs and will, whenever uneducated or illiterate future members Response. The proposed regulations possible, place a UAC with special of the community, who would be a mirrored the FSA requirements for needs in a licensed program that detriment to the country. medical care. Medical care is provided provides services and treatment for the in accordance with American Medical UAC’s special needs. Title 8 CFR 29 R. Kronick et al. Asylum-seeking Children’s Association standards. As stated above, 236.3(g)(2) requires DHS to place minors Experiences of Detention in Canada: A Qualitative FRCs have medical staff on-site to care and UACs in the least restrictive setting Study, 85(3) AM. J. Orthopsychiatry 287 (2015);

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One commenter stated that the minors local public school system under those when weather permits. The commenters should be placed in public schools in same circumstances. did not explain why the FSA order to obtain necessary health It is unclear why commenters believe requirements are not sufficient to socialization with other children and that this regulatory requirement would implement the FSA. Some commenters adults and avoid becoming second class allow DHS not to provide educational stated that children’s time was being citizens. Other commenters cited reports services. The same requirements for a taken up by activities that kept them to show that children succeed structured classroom setting are in both from their parents, but any activities emotionally and academically when the FSA and the proposed regulation. outside the 1–3 hours required by the they live in a stable home with an adult There is no requirement in the FSA FSA are strictly voluntary on the part of they trust and learn in a normal, requiring the government to explain both the parents and children in ICE structured and supportive classroom how it plans to provide the educational facilities. It is unclear from the and not when the children are kept in services. It has been doing so for 20 examples provided by the commenters indefinite detention without adequate years and the regulations will mandate which particular activities they believe services and protections. Commenters that it continue to do so. were causing parents to feel that they also cited to a study of children in Recreation Time (§ 236.3(i)(4)(vi)) were being deprived of time with their immigration detention facilities in children and creating antisocial and Australia, the United Kingdom, and the Comments. Several commenters suicidal tendencies in their children. United States that shows that children stated that the proposed standards In response to the comment about react to detention with extreme distress, would provide minors and their families ‘‘tent cities,’’ DHS believes commenters fear, and helplessness, all of which can with insufficient opportunity for are referring to HHS operations. The result in a deterioration of functioning recreational activities. One commenter commenter may be addressing concerns stated that recreational and social and impair the ability to learn. regarding the Tornillo Influx Care enrichment activities, such as Facility, which was closed and Commenters stated that the proposed opportunities for physical activity and rule provides no assurance that the dismantled in January 2019. HHS notes creative expression, should be required. that at no point did ORR house 13,000 detention facilities will comply with the This commenter stated that at a FSA’s minimum standards for UAC in ‘‘tent cities.’’ HHS addresses minimum, the outdoor and major concerns and comments on the Tornillo educational services and that the muscle activity standards set by the FSA proposed rule does not address how Influx Care Facility in its response should be retained. Some commenters below at ‘‘Procedures During an DHS and HHS specifically intend to stated that 13,000 children in custody Emergency or Influx (45 CFR 410.209).’’ provide educational services have no recreational and educational The effects of trauma from the journey appropriate to the minor’s level of opportunities in tent cities, but these to the United States and detention in development in a structured classroom commenters provided no data to general are discussed in the trauma setting, as required by the FSA. One support this contention. section. commenter stated that the proposed A mental health professional wrote standards eliminate the requirement to that adequate opportunities for play Mental Health and Counseling provide education in languages other should be provided for young children (§ 236.3(i)(4)(vii) and (viii)) than English and, as a result, fail to separated from their parents because at Comments. Several commenters ensure the minors are instructed in a that age all psychological issues, expressed concern that the proposed language they can understand. Some including grieving, are resolved regulations would not ensure commenters noted that DHS has had primarily through play. According to appropriate mental health services. One problems staffing detention facilities the commenter, younger children will commenter stated that detention with bilingual teachers to meet the need opportunities to focus on grieving facilities are not covered by HIPAA and necessary educational needs, including to allow them to focus on other tasks thus social workers’ notes may be used special education services. Other when needed, and that adolescent against the minors and their families in commenters asserted that in unlicensed children need structured opportunities their deportation hearings when the ‘‘emergency’’ or ‘‘influx’’ facilities, the to gain a sense of control in their lives children believe that the information Departments may opt to provide no and information about their early will be kept confidential. This educational services at all. history so as to avoid suicidal or commenter pointed out that minors are Response. The proposed regulations antisocial tendencies. unlikely to confide in social workers if mirror Exhibit 1, paragraph 4 of the FSA A different commenter stated that they know that the information will not except that the requirement for providing daily activities for minors in be kept confidential and this is instruction in the minor’s native the detention center means that detrimental to the minors’ well-being language, which is substituted with a detention facility staff replace parents as and mental health. Another commenter requirement the educational program authority figures, parents do not have a stated that the proposed language could design be appropriate for the minor’s say in how their children are treated, lead to fewer minors receiving estimated length of stay and can include and the staff that interact most with counseling and a reduction in the length the necessary skills appropriate for minors during their recreation time are or quality of group counseling because transition into the U.S. school system. the lowest paid staff with the least the proposed language only requires a In practice, most educators who teach at amount of training and experience, mental health wellness interaction and FRCs are bilingual, typically in English which leads to widespread behavioral allows to be performed during other and Spanish, and provide problems and mistreatment of the activities. The commenter also stated individualized education in a manner children by the staff. that the standards fail to require designed to be most effective for the Response. As stated previously, facilities to create appropriate rules and minor. However, during a true § 236.3(i) is about ICE facilities. The discipline standards and also fail to emergency where children are proposed regulation reflected all of the maintain the FSA limits of discipline evacuated to a different facility, it is requirements of paragraph 5 of the FSA standards. likely that educational programs will be in requiring recreation and leisure time Several commenters expressed suspended just as they would be in the activities, including outdoor activities concern that the FRCs would be unable

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to provide adequate mental health group counseling sessions. DHS added for why detained minors should not services in a compassionate and provisions to allow for assessments universally be afforded visitation and responsive manner. One commenter when minors refused to participate in contact with family members. stated that facilities must have mental counseling sessions and to combine the A foreign government wrote that, in health professionals that speak Spanish, group sessions with other structured accordance with the provisions of the have training in cultural diversity, and activities to remove the stigma of a Vienna Convention on Consular have experience with trauma. One ‘‘group counseling session’’ and Relations, the proposed rule should commenter stated that meaningful encourage all minors to attend. DHS’s grant access to consular officials to visit access to trauma-informed mental years of experience have shown that too and interview alien children in the health care, especially in the cases of many minors decline to participate in different stages of their processing. sexual assault, is critical. A medical counseling sessions when they are Response. Non-secure, licensed ICE association recommended that each designated as such, and that children facilities must abide by standards that facility staff their leadership teams with are more likely to participate in DHS are set forth in 8 CFR 236.3(i)(4). A psychiatrists to care for persons group sessions are combined with other minor has the right to visitation and suffering post-traumatic symptoms and events. For those instances where contact with family members, regardless other migration-related syndromes of children decline individual sessions, a of their immigration status. See 8 CFR distress. mental health wellness interaction at 236.3(i)(4)(xi). DHS structures the Response. In response to comments least allows a counselor to do a wellness visitation and contact with family expressing concern over alleged lack of check and may be to get the minor to members to encourage this visitation confidentiality of ICE detainee health open up and have what professionals including requiring the staff at the ICE records and the potential that some would call a counseling session. facility to respect the minor’s privacy minors may forgo mental health Adhering to the strict requirements of while reasonably preventing the treatment because of this concern, IHSC the FSA would not be workable, unauthorized release of the minor and advises that, although ICE health especially for teenagers who do not the transfer of contraband. A minor has records are not subject to the Health believe they will benefit from a reasonable right to privacy in the Insurance Portability and counseling. facility which specifically includes the Accountability Act of 1996 (HIPAA), right to talk privately on the phone and ICE detainee health records are kept Contact With Relatives and Attorneys visit privately with guests, as permitted confidential as a matter of policy, and (§ 236.3(i)(4)(xi), (xii), (xiii), and (xv)) by applicable facility rules and access to such records is restricted. In Comments. Several commenters regulations. See 8 CFR 236.3(i)(4)(xii)(C) most cases, a detainee’s health expressed concerns about the and (D). In addition to the right to talk information will not be released unless complexity of communications with privately on the phone, the DHS the detainee signs an Authorization to individuals in detention. One regulations specifically note that when Disclose/Obtain Information from their commenter stated that it is extremely necessary, arrangements will be made health record. In addition, employees complicated for individuals, for communication with adult relatives are required to sign and annually affirm particularly children, to make phone living in the United States and in a statement to protect and maintain the calls in the detention center to their foreign countries regarding legal issues confidentiality and privacy of patient non-detained family and/or attorney related to the release and/or removal of care information. While it is true that because the detainee must either make the minor. See 8 CFR 236.3(i)(4)(xiii). A detainee health records may, in some a collect call or purchase a calling card. commenter expressed concern about the instances, be disclosed without consent, This commenter also noted that there is ‘‘when necessary’’ language, but that this practice is authorized under the no method for non-detained language is used to convey that in most Alien Health System of Records Notice individuals, such as attorneys or parents cases there would not be a need to (SORN) 30 consistent with DHS’s of detained minors, to make a phone communicate with other adult relatives mission to fully execute its law call to a child in DHS custody. Another because the minor is in custody with his enforcement and immigration functions. commenter stated that minors in or her parent. But nevertheless, if there In addition, such disclosures are also existing facilities have been denied the is such a need it can be accommodated. permitted under certain limited routine opportunity to talk to family on the Additionally, the minor has the right to uses identified in the SORN. Pursuant to phone. One commenter expressed receive and send uncensored mail the SORN, however, DHS notes that this concern that the language in section unless there is a reasonable belief that information may only be released for a 236.3(i)(4) regarding a minor’s right to the mail contains contraband. See 8 CFR purpose consistent with the purpose of communicate privately and visit with 236.3(i)(4)(xii)(E). All residents at FRCs the initial information collection. Thus, guests, family members, and counsel is have access to the internet to receive concerns that detainee health records too restrictive and qualifying. The and send email. will somehow always be relevant to a commenter recommended that detained One commenter stated that the minor’s removal proceeding such that minors have the right to receive regular regulations should grant access to an immigration judge will allow routine and frequent visits from family and consular officials to visit and interview use of such records as part of a removal friends in circumstances that respect the minors in the different stages of their case are purely speculative and minor’s needs for privacy, contact, and processing. The Vienna Convention on unfounded. unrestricted communication. Consular Relations notes that consular With respect to the remaining One commenter stated that proposed functions include helping and assisting concerns about the provisions related to § 236.3(i)(4)(xiii) inappropriately nationals, both individual and mental health counseling, DHS notes restricts a child’s ability to corporate, of the sending State; that the proposed regulatory text communicate with adult relatives in the safeguarding the interests of minors; and mirrored Exhibit 1, paragraphs 6 and 7 United States and abroad to legal issues representing or arranging appropriate of the FSA regarding individual and only when it is deemed ‘‘necessary.’’ representation for nationals of the This commenter noted that there is no sending State before tribunals and other 30 DHS/ICE–013 Alien Health Records System, definition of ‘‘necessary’’ or who makes authorities of the receiving State. See see 83 FR 12015 (Mar. 19, 2018). that determination, and no justification Article 5(e), (h), and (i). In addition, the

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Convention states that consular officers commenter cited research explaining unable to understand the information. shall be free to communicate with that in Houston from 2007–2012, 13 As explained above, DHS is changing nationals of the sending State and to percent of detained respondents had this section such that the notice will be have access to them; that the receiving counsel as opposed to 69 percent of provided, read, or explained to all State shall inform the consular post, if those that were not detained. This minors and UACs in a language and the national of the sending State so commenter noted that immigrants manner that they understand. Every requests, of their detention; and that without counsel are significantly more minor who is not a UAC transferred to consular officers shall have the right to likely to be ordered removed than those or who remains in a DHS facility will visit a national of the sending State who with representation and cited also be advised of their right to judicial is in prison, custody or detention to supporting data including one study review and will be provided with a converse and correspond with the that stated that individuals without current list of free legal service national and to arrange their legal attorneys were granted relief at a rate of providers. See 8 CFR 236.3(g)(1)(ii) and representation. See Article 36. DHS is 4 percent compared to when all indigent (iii). compliant with the Vienna Convention immigrants in removal proceedings Additional protections support the on Consular Relations and does not were provided attorneys and the rate right to counsel. Upon admission to a believe any changes need to be made to increased to 48 percent. non-secure facility, a minor is provided the text of the regulations to accomplish Some commenters stated that the with a comprehensive orientation this. proposed rule improperly eliminates including information about the FSA provisions requiring class counsel’s availability of legal assistance, the Access to Legal Services right to attorney-client visits for all (§ 236.3(i)(4)(xiv) and (xv)) availability of free legal assistance, the types of placements and counsel’s right right to be represented by counsel at no Comments. Multiple commenters to access facilities where minors have expense to the Government, the right to objected to the proposed rule on the been placed. Another commenter stated apply to asylum or to request voluntary ground that it would provide fewer legal that paragraph 32(A) of the FSA departure, and the right to attorney- protections for minors who may not provided access to counsel to all client visits in accordance with understand the concept of the rights children in custody including those applicable facility rules and regulations. they are asked to waive, including an whom counsel may not have met before See 8 CFR 236.3(i)(4)(ix), (xiv), and (xv). example of a five year old signing away the visit and expressed concern that the Minors in secure facilities are also her rights. One commenter asserted that proposed regulations do not contain permitted attorney-client visits in minors must be provided with access to comparable language. One commenter accordance with applicable facility rules legal representation because children recommended that the proposed rule and regulations. See 8 CFR 236.3(i)(2). are the most vulnerable individuals in should guarantee that minors will be The Family Residential Standards society with the most to lose and their permitted to visit with their attorney, require access to counsel. human rights will otherwise be violated. child advocate, or other persons Regarding one commenter’s example Another commenter noted that children necessary for their representation, any of a five-year old child signing a legal should never be presumed a threat to day of the week, including holidays, document that deprived her of her our society and that expecting minors to and that such visits should be permitted rights, the example may be referring to make legal arguments without an at any time during the period of at least a New Yorker article about a child who attorney is unreasonable and eight hours a day. signed an ORR form to indicate she did unacceptable when their liberty is at Response. DHS ensures that all not need a custody hearing before an stake. minors know of their rights including immigration judge as allowed for by Several commenters expressed their right to access counsel by paragraph 24 of the FSA.31 This concern that the proposed rule would providing them with this information example does not speak to DHS custody fail to provide minors with adequate during processing and when they are of children, but HHS has responded to access to legal services. Many admitted to a detention facility. all substantive comments about its commenters were concerned about how Every minor who enters DHS custody, proposal to replace custody minors in detention centers would including minors and UACs who determination hearings before obtain access to legal services and request voluntary departure or request immigration judges with independent, whether minors were being properly to withdraw their application for internal HHS proceedings at section apprised of their legal rights. Several admission, will be issued a Form I–770, commenters stated that minors would Notice of Rights and Request for 410.810 of this rule. With respect to this not have access to adequate legal Disposition. See 8 CFR 236.3(g)(1)(i). specific example, HHS notes that both services because most detention centers The Form I–770 includes a statement custody hearings under the FSA and the are located in rural and remote areas of informing the minor or UAC that they proposed internal hearings under this the country where there is limited can make a telephone call to a parent, rule are only for UACs whom ORR will access to qualified immigration legal close relative, or friend. This is to not discharge solely because they would assistance. A commenter noted that ensure that the minor or UAC can be a danger to community. ORR did not non-profit organizations that provide contact an individual who has their best consider the child in the article to be a pro bono immigration services to minors interest in mind because, as the above danger to self or others, nor would it have encountered logistical difficulties commenter states, children are the most consider any five-year old in its care to accessing minors in detention and more vulnerable individuals in society. be a danger. resources must be allocated for each Additionally, to make sure that the Technical Drafting minor properly understands their rights, client. Comments. One commenter noted Multiple commenters stated that proposed § 236.3(g)(1)(i) required the that § 236.3(i) lists, as an exception to numerous studies and data show that notice to be read and explained to the the least restrictive setting requirement, detention significantly raises barriers to minor or UAC in a language and manner access to legal counsel, but that legal he or she understands if it is believed 31 Available at https://www.newyorker.com/news/ representation was critical to obtaining (based on all available evidence) that news-desk/the-five-year-old-who-was-detained-at- relief before an immigration judge. One the minor is less than 14 years old or is the-border-and-convinced-to-sign-away-her-rights.

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‘‘the need to ensure the minor’s timely authorized under § 236.3(i), the minor her into HHS custody, if the appearance before DHS and the will be placed in a licensed, non-secure relationship cannot be established. immigration courts’’ and cross- facility. A non-secure facility means that The terms contained in paragraph references 6 CFR 115.14 in doing so. a facility either meets the definition of (j)(3) required DHS to assist with The commenter noted that no such non-secure in the State in which the making arrangements for transportation language is included in 6 CFR 115.14, facility is located or if no such and maintaining the discretion to and the group recommended striking definition exists under state law, a DHS provide transportation to the DHS office the referenced language, as it appears to facility is deemed non-secure if egress nearest the parent or legal guardian, if prioritize appearances before DHS over from a portion of the facility’s building the relationship is established, but the the minor’s special needs and well- is not prohibited through internal locks parent or legal guardian lives far away. being. within the building or exterior locks and The terms contained in paragraph Response. DHS notes that 6 CFR egress from the facility’s premises is not (j)(4) required DHS to not release a 115.14 states that minors shall be prohibited through secure fencing minor to any person or agency whom detained in the least restrictive setting around the perimeter of the building. DHS has reason to believe may harm or in accordance with the applicable laws, See 8 CFR 236.3(b)(11). All FRCs allow neglect the minor or fail to comply with regulations, or legal requirements. FSA families open access during the day to requirements to secure the minor’s paragraph 14, which this section of the libraries, gymnasiums, and other timely appearance before DHS or the rule implements, recognizes that the activities, and access to snacks and immigration court. Government has the authority to detain telephones in their living areas at all Public Comments and Response minors if it is necessary to secure the hours. minor’s timely appearance before the Although DHS maintains that its FRCs Comments. Commenters generally Government or the immigration court, have been and continue to be non- disagreed with DHS’s assertion that it or to ensure the minor’s safety or that secure, the comments received on this does not have the authority to release a of others. DHS declines to amend this minor to anyone other than a parent or section. point demonstrate that DHS could take additional steps to ensure the public legal guardian. Several commenters Prison-Like Conditions that DHS has no intention of running expressed concern that the proposed changes codify family separation by not Comments. Multiple commenters FRCs as secure facilities. To that end, DHS will be adding additional points of requiring DHS to consider releasing a stated that the proposed standards parent and child simultaneously. would result in conditions similar to egress to the Dilley and Karnes facilities by September 30, 2019. Several commenters pointed to what prisons and that such conditions were they generally perceived as flaws in inappropriate for minors. These Changes to Final Rule DHS’s interpretation of the FSA’s commenters noted that prison-like ‘‘general policy favoring release’’ as well facilities are antithetical to the healthy In response to comments, DHS adds as the requirement to release minors development of children and additional language from FSA Exhibit 1 ‘‘without unnecessary delay.’’ undermines the ability of parents to to the regulatory text at 8 CFR properly care for and nurture their 236.3(i)(4). • Restricting Release to Parents and children. Several commenters noted that Legal Guardians Only 10. Release of Minors From DHS it was never appropriate to place minors Custody (§ 236.3(j)) Comments. Many commenters in prisons, jails, cages, or freezers and expressed concern about restricting that the FSA explicitly prohibits jail-like Summary of Proposed Rule release of minors from DHS custody to conditions for minors. parents and legal guardians. These One commenter said that, The terms contained in paragraph (j)(1) permitted release of a minor only commenters pointed to paragraph 14 of nevertheless, facilities for minors the FSA and the current language of 8 required badge checks three times a day, to a parent or legal guardian who is available to provide care and custody, in CFR 236.3, both of which articulate that used electronically locked doors for minors may currently be released to access to basic areas such as the library, accordance with the TVPRA, using the same factors for determining whether parents, legal guardians, as well as other and limited and monitored access to ‘‘adult relatives.’’ These commenters telephones and email. Other release is appropriate as are contained in paragraph 14 of the FSA, once it is stated that restricting release to parents commenters said that the detention and legal guardians will increase the standards would severely restrict the determined that the applicable statutes and regulations permit release. Included likelihood of family separation and movement and freedom of minors, detention time. regulate meal breaks, and result in in the relevant factors typically is consideration of whether detention is A significant number of commenters disruptive bed-checks every 15 minutes expressed concern that the TVPRA did at night. They note that ‘‘non-secure’’ as ‘‘required either to secure his or her timely appearance before [DHS] or the not justify changing the conditions defined in the regulation does not mean imposed by paragraph 14 of the FSA that families can come and go as they immigration court, or to ensure the minor’s safety or that of others.’’ with regard to families with children, please, but rather that only one small because the TVPRA only addresses The terms contained in paragraph portion of the facility must be unlocked. unaccompanied children. These Response. DHS does not put children (j)(2) required DHS to use all available commenters further noted that a District in jails, prisons, cages, or freezers. evidence, such as birth certificates or Court has held that the TVPRA is not Pursuant to § 236.3(i), when minors who other available documentation, to inconsistent with the FSA, and the are not UACs are detained in DHS ensure the parental relationship or legal government abandoned its appeal.32 custody (that is, when they are detained guardianship is bona fide when Multiple commenters asked DHS to together with their parents or legal determining whether an individual is a provide a more detailed justification to guardians in a FRC), the minors shall be parent or legal guardian. Additionally, detained in the least restrictive setting the terms contained in this sub- 32 Flores v. Johnson, 212 F. Supp. 3d at 868–869; appropriate to the minor’s age and paragraph required DHS to treat a Flores v. Sessions 2018 U.S. App. LEXIS 20461 (9th special needs. Unless a secure facility is juvenile as a UAC and transfer him or Cir. Cal. Apr. 27, 2018).

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explain why DHS does not have the commenter noted that the HSA and concern that the proposed changes legal authority to release children to TVPRA supersede the FSA and contradict Congressional intent that anyone other than a parent or legal therefore DHS does not have statutory children are to be reunified with a guardian, especially in light of rigorous authority to release minors to anyone sponsor in the best interest of the child suitability assessments. One of these other than parents, legal guardians, or and in the ‘‘least restrictive’’ commenters asserted that ‘‘circular HHS. placement.34 This commenter stated citations’’ in the NPRM made it difficult that the existing regulatory language • Simultaneous Release of Parent and to assess the rationale behind changing comports with the fundamental right to Child this provision. Other commenters stated family unity, whereas the proposed that there is evidence indicating that Comments. Several commenters changes would interfere with this right. placing a child with extended family stated that the proposed changes further • FSA’s Requirement To Release members when parental custody is not codify family separation by eliminating Children ‘‘Without Unnecessary Delay’’ viable results in improved outcomes for the current requirement that DHS children and that doing so is preferable consider releasing a parent and child Comments. Several commenters to detaining children in government simultaneously. One commenter stated that the proposed changes would custody for an undetermined amount of pointed Supreme Court’s opinion in delay release and prolong time. Flores v. Reno, in which the majority institutionalization swelling an already Multiple commenters stated that the stated, ‘‘[t]he parties to the present suit overburdened HHS shelter system. For proposed changes create an agree that the [INS] must assure itself example, one expressed concern that inconsistency between DHS and HHS that someone will care for those minors parents will not be incentivized to come release procedures. These commenters pending resolution of their deportation forward and sponsor their child once stated that it makes no sense for DHS to proceedings. That is easily done when they are transferred to HHS, further separate a child from his or her parent, the juvenile’s parents have also been adding to increased detention times for re-designate that child as a UAC, and detained and the family can be released children. This commenter pointed to an transfer the child into HHS custody, together.’’ This commenter questioned April 2018 Memorandum of Agreement only to have HHS potentially release how DHS and HHS can justify departing between DHS and HHS requiring the that same child to an adult relative from the Supreme Court’s opinion collection of sponsor fingerprints for the sponsor. They questioned why DHS under the proposed regulations. purposes of immigration enforcement. could not simply maintain existing One commenter expressed concern Another commenter stated that the procedures and release minors to adult that eliminating current requirements to proposed changes are at odds with relatives, as appropriate. consider simultaneous release of parent paragraph 14 of the FSA which is the A commenter stated that children and child will lead to either longer heart of the settlement’s protections who do not have a parent or legal detention time for children and/or requiring DHS and HHS to release guardian to whom they can be released increased instances of family separation. children without unnecessary delay. A often have a stronger defense against Other commenters said the proposed commenter stated this would lead to removal, including but not limited to changes go too far and eliminate the long detention, placement in long-term eligibility for Special Immigrant required evaluation, thereby reducing foster care, or detention fatigue, Juvenile status. One commenter stated the likelihood of discretionary exercises potentially forcing a child to accept that restricting release to parents and of this existing authority. Another voluntary departure and risk re- legal guardians goes against common commenter stated that forcible exposure to the danger he or she fled cultural practices in other parts of the separation of children from their parents from in the first place, rather than being world where extended family members is generally considered a war crime, or able to pursue relief in the United States play a prominent role in providing care at least morally reprehensible. for which the child may qualify. and custody of children. Another Response. DHS maintains its position • FSA’s ‘‘General Policy Favoring commenter stated that many refugee that the FSA, when originally drafted, Release’’ children do not have parents in-country was never intended to apply to alien and disallowing extended family Comments. Several commenters minors who were accompanied by their members from accepting immigrant expressed concern about the proposed parents or legal guardians. DHS has also minors would keep many refugee changes not adhering to the FSA’s found that balancing its enforcement of children in detention unnecessarily. general policy favoring release and immigration laws with its obligations to Multiple commenters expressed family reunification. Another comply with the FSA as the courts have concern about DHS not implementing commenter stated that the proposed interpreted the Agreement has paragraph 15 of the FSA, which regulations codify a change from the presented significant operational according to commenters, allows a FSA’s general policy favoring release to challenges. Nevertheless, this rule parent to appoint a guardian with a indefinite detainment. Another provides for the release of both notarized affidavit. One of these commenter expressed concern about accompanied minors and UACs, commenters stated that discontinuing longer detention times and costs. This through the existing statutes and the use of affidavits allowing parents to commenter cited a report noting that the regulations, in a way that complies with approve release of their child to an adult Tornillo detention center began the intent of the FSA, while allowing relative unnecessarily limits the options operating in June 2018, expanded from DHS to fulfill its statutory requirements. available and goes against the FSA’s 1,200 to 3,800 beds, and now has an The TVPRA mandates that the care general policy favoring release. estimated monthly cost of $100 and custody of UACs is solely the However, one commenter expressed million.33 A commenter expressed domain of HHS. Absent exceptional support for the proposed changes and circumstances, DHS is required to stated that given high absconder rates 33 Summary of Proposed Regulations Regarding transfer UACs to HHS within 72 hours for minors and UACs, releasing minors Children and Immigration Detention, National of determining that an individual is a Immigration Forum, https://immigrationforum.org/ to parents or legal guardians places the article/summary-of-proposed-regulations-regarding- UAC. By definition, a UAC is a child child in the best position to prepare for children-and-immigration-detention/ (last visited immigration proceedings. This Nov 6, 2018). 34 See 8 U.S.C. 1232(b)(4).

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who has no lawful immigration status in about the adult relative’s ability to 11. Procedures Upon Transfer § 236.3(k) the United States, has not attained 18 secure the non-UAC minor’s timely Summary of Proposed Rule years of age, and with respect to whom appearance before DHS or the there is no parent or legal guardian in immigration courts. However, DHS will DHS proposed revisions to § 236.3(k) the United States or no parent or legal maintain a presumption for keeping state that all minors or UACs transferred guardian in the United States is minors with parents or legal guardians. from one ICE placement to another will available to provide care and physical Any release of a non-UAC minor to an be transferred with all possessions and custody. 6 U.S.C. 279(g)(2). If a juvenile adult relative other than a parent or legal property. The proposed regulations is encountered with the juvenile’s legal guardian will be within the added that a minor or UAC will not be parent or legal guardian, DHS is likely unreviewable discretion of DHS. DHS transferred until a notice has been to consider the group a family unit and notes that the TVPRA and HSA provided to their counsel, except in an is unlikely to consider the juvenile a provisions that apply to UACs cannot be unusual or compelling circumstance. UAC. However, if the parent or legal superseded by the FSA or by existing Public Comments and Response guardian is required to be detained in a regulations. The court decisions cited by setting in which he/she cannot provide Comments. One commenter commenters state that the TVPRA and commented that the requirements for care and physical custody of that HSA do not supersede the FSA solely as juvenile, for instance in criminal providing notice to counsel prior to to the point that the FSA applies to both transferring a UAC or minor do not align custody, the juvenile may become a minors and UACs, and the Government UAC by operation of law. with the ABA UC Standards, which is currently appealing these decisions. recommends both oral and written If the juvenile becomes a UAC, DHS DHS reiterates that it does not hold no longer has the legal authority to notice to the child and his or her minors for extended periods of time attorney prior to transfer to include, (1) provide for the care and custody of the without their parents or legal guardians, juvenile and must transfer the juvenile the reason for transfer; (2) the child’s unless these minors are subject to secure right to appeal the transfer; and (3) the to HHS. Because DHS has no authority detention. Regarding the comments to provide for the care and custody of procedures for an appeal. about the FSA generally favoring UACs, DHS cannot release a UAC but The ABA UC Standards further release, DHS must release minors instead must transfer a UAC to HHS. recommend that the notice include the pursuant to the existing statutes and Regarding commenters’ concerns date of transfer and the location, regulations; this includes release on about the implementation of paragraph address, and phone number of the new parole. Consistent with the language of 15 of the FSA, DHS notes that paragraph detention facility, and the commenter paragraph 14 of the FSA, DHS will 15 does not provide a means by which urged DHS to include these provisions consider parole for all minors in its a parent can appoint a guardian; rather, in the rule. custody who are eligible, and such it requires that a potential sponsor sign The commenter also raised a concern consideration will include whether the an affidavit of support. With respect to with the use of the terms ‘‘unusual and minor presents a safety risk or risk of the Tornillo facility, DHS notes that it compelling circumstance’’ without absconding. DHS believes that paroling is an HHS facility and § 236.3 does not further guidance. The commenter such eligible minors detained pursuant apply to HHS facilities. suggested that DHS adopt the language Upon consideration of the comments, to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) from the ABA UC Standards, which however, DHS now agrees that DHS is who present neither a safety risk or risk define ‘‘compelling and unusual not statutorily barred by the HSA and of absconding will generally present an circumstances’’ as the child posing an TVPRA from releasing a non-UAC urgent humanitarian need. For more immediate threat to himself or others or minor to someone other than a parent or general concerns about parole, see the the child posing an escape risk. A state legal guardian. DHS acknowledges that discussion above regarding § 212.5. agency similarly commented that the this interpretation of the law differs Changes to Final Rule exception to providing prior notice to from the interpretation DHS represented counsel in ‘‘unusual and compelling to the U.S. Court of Appeals for the 9th Accordingly, DHS amends its circumstances’’ is too broad and will Circuit in recent litigation,35 but after proposed regulatory text in 8 CFR ‘‘result in arbitrary and capricious considering the comments received on 236.3(j) to not preclude release of a non- application.’’ Finally, a commenter this rulemaking and further reviewing UAC minor to an adult relative (brother, urged DHS to include language from the the language of the HSA and the sister, aunt, uncle, or grandparent) who ABA UC Standards addressing a right to TVPRA, DHS has determined that this is not in detention and is available to an independent review of a transfer revised interpretation of these statutes is provide care and physical custody. Such decision that places the burden of the best reading of them, and that release, if deemed appropriate, will be persuasion that a transfer is necessary allowing for such releases here is effectuated within the discretion of on DHS and allows a dissatisfied minor necessary and appropriate. DHS. DHS also adds paragraph (j)(4) or UAC to seek further de novo review The current text of 8 CFR 236.3(b) stating that DHS will consider parole for in Federal court. permits release of a juvenile to an adult all minors who are detained pursuant to Response: DHS declines to adopt this relative, specifically a brother, sister, section 235(b)(1)(B)(ii) of the INA or 8 suggestion to adopt the ABA UC aunt, uncle, or grandparent, who is not CFR 235.3(c) and that paroling such standards because the standards impose presently in detention. DHS believes minors who do not present a safety risk requirements on DHS that exceed what that release of non-UAC minors to these or risk of absconding will generally the FSA requires and may place an other adult relatives may be lawful and serve an urgent humanitarian reason, undue burden on DHS operations or appropriate in certain circumstances, and may also consider the minor’s well- compromise the security of UACs and/ provided that the Government has no being. Lastly, DHS adds that it may or minors or DHS personnel and concerns about the minor’s safety upon consider aggregate and historical data, facilities. The proposed regulation at such release, and it has no concerns officer experience, statistical § 236.3(k) incorporates the transfer information, or any other probative standards required by the FSA, as 35 See Brief for Appellants, Flores v. Sessions, No. information in making these amended to account for the changes in 17–56297 (9th Cir. Jan. 5, 2018). determinations. law made by the HSA and TVPRA.

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The FSA does not require DHS to Changes to Final Rule thwart the child’s ability to obtain provide notice of the transfer of a UAC Accordingly, DHS declines to amend humanitarian relief. These commenters or minor to anyone other than legal the proposed regulatory provisions suggest that the complex nature of the counsel. The FSA does not specify the regarding monitoring based on public issues raised by this provision form in which notice be provided nor comments, and adopts the language underscore the need for appointed does it specify that any other details proposed in the NPRM through this counsel in immigration proceedings. (i.e., date of transfer, location, address final rule. Several commenters recommended and phone number of new facility) must that DHS be required to appoint an be disclosed. The FSA does not require 12. Notice to Parent of Refusal of independent advocate to be appointed DHS to provide an explanation of the Release or Application for Relief for each child; one who represents the reasons for a transfer or provide a § 236.3(l) individual child’s best interest and legal process of administrative review and Summary of Proposed Rule needs through the maze of bureaucracy. appeal of DHS’s decision to transfer a Response. DHS has determined that UAC or a minor. However, paragraph DHS proposed to move and clarify the language of this provision is 24B of the FSA provides a UAC or current regulatory provisions in sufficiently detailed to guide decision- minor an opportunity to challenge that § 236.3(e) and (f) to a new § 236.3(l) to makers and that any further detailed placement determination by seeking state that a parent shall be notified if a explanation of terms is more judicial review in any U.S. District minor or UAC in DHS custody refuses appropriate for guidance documents and Court with jurisdiction and venue over to be released to his or her parent; or if policies. Given DHS’s experience that the matter, and the proposed regulation the minor or UAC request any type of many legal representatives vigorously in § 236.3(g)(1)(ii) and (iii) provide that relief from DHS that would terminate advocate for children in immigration minors will receive notice of his or her the parent-child relationship, or the proceedings, DHS declines to commit to right to judicial review, as well as be rights or interest are adverse to that of appointing an independent child provided with the free legal service the parent(s). The proposed regulation advocate at this time. balances the minor’s or UAC’s desire to provider list. Changes to Final Rule DHS notes that the commenter’s take an action adverse to the wishes of concern about the use of the term his/her parent with the parent’s or legal DHS declines to expand the ‘‘unusual and compelling guardian’s right to be notified and provisions of 8 CFR 236.3(l) to provide circumstances’’ without further present their views to DHS, especially if a detailed explanation of the meaning of guidance is misplaced, because the term the adverse action would terminate the the terms in this paragraph. is taken from paragraph 27 of the FSA. parent-child relationship. The proposed 13. Bond Hearings § 236.3(m) Paragraph 27 provides guidance on regulatory text, as with existing what could be ‘‘unusual and compelling regulations, does not allow the parent to Summary of Proposed Rule circumstances,’’ including ‘‘where the request a hearing on the matter before DHS’s proposed revisions to safety of the minor or others is an immigration judge. § 236.3(m) state that bond hearings are threatened, or the minor has been Public Comments and Response only applicable to minors who are in determined to be an escape-risk, or removal proceedings under INA 240, to where counsel has waived such notice.’’ Comments. One commenter stated the extent permitted by 8 CFR 1003.19, FSA paragraph 27. These illustrative that the provision does not meet the and who are in DHS custody. DHS has definitions are included in proposed stated purpose of this rulemaking also removed the term ‘‘deportation regulation § 236.3(k). because it does not implement the FSA, proceeding’’ from the existing regulation DHS declines to adopt the TVPRA, or HSA, but rather continues and updated the language with bond commenter’s suggestion to substitute this dated provision. Several hearings to be consistent with the ‘‘unusual and compelling commenters stated that the proposed changes in immigration law. The circumstances’’ as defined in the FSA language does not explain how DHS proposed rule also adds language to with the ABA’s definition of will determine when a grant of relief specifically exclude certain categories of ‘‘compelling and unusual will effectively terminate an inherent minors over whose custody immigration circumstances’’; namely: ‘‘i. the Child interest in a parent-child relationship or judges do not have jurisdiction. poses an immediate threat to himself or how DHS will determine when a child’s others; or ii. the Custodial Agency has rights and interests are adverse to the Public Comments and Response made an individualized determination parents’ rights and interests. One Comments. Several commenters wrote that the Child poses a substantial and commenter is also worried that there is about the proposal to update the immediate escape risk.’’ UC Standards no provision in the proposed regulation provision for bond hearings under DHS section VII.H.2.c. By imposing a about how DHS would determine proposed 8 CFR 236.3(m) and HHS heightened standard of danger and whether such notification is prohibited proposed 45 CFR 410.810. Because both escape risk to trigger the exception, the by law or would pose a risk to the provisions related to paragraph 24(A) of UC Standard definition potentially minor’s safety or well-being. Another the FSA, comments sometimes exposes the UAC or minor and others to commenter urged a right to appeal. transitioned fluidly between being a risk of harm or flight that was When the original regulations were directed toward DHS and HHS. The otherwise mitigated in the FSA. The promulgated, the INS adjudicated comments submitted can be grouped definition is also unworkable as applied applications and had custody of the into two main categories: (1) That the to DHS, because the UC Standards children. Some commenters believe that changes to the bond hearing provision define ‘‘Custodial Agency’’ to exclude ICE and CBP inherently lack the are incompatible with the text of the an Immigration Enforcement Agency. knowledge needed to understand the FSA and case law interpreting it and (2) The UC Standards definition places risks of revealing the type of application that such changes raise due process undue burden on DHS operations and filed by a minor because neither concerns. compromises the security of UACs and/ organization knows about the content of The most frequent comment was that or minors and DHS personnel and immigration applications and might the proposed transition of bond hearings facilities. inadvertently put the child at risk or from an immigration court to an

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administrative setting does not comply child or counsel, and procedures to expedited removal proceedings are not with the FSA and applicable case law. ensure that all minors are informed of afforded bond hearings; rather, DHS The commenters reasoned that their right to request review of may parole such aliens on a case-by- paragraph 24(A) of the FSA requires continued detention. case basis. See INA 235(b)(l)(B)(iii)(IV); minors in deportation proceedings to be Some commenters who differentiated Order Re: Motion to Enforce and afforded a bond redetermination hearing between the provisions applicable to Appoint a Special Monitor at 23, Flores before an immigration judge in every DHS and HHS, supported or v. Sessions, No. 85–4544 (C.D. Cal. June case. They further pointed to the acknowledged that proposed 8 CFR 27, 2017). DHS also notes that arriving decision in Flores v. Sessions, 862 F.3d 236.3(m) maintained the process aliens, even those in section 240 863 (9th Cir. 2017), as evidence that the required by FSA paragraph 24(A). One proceedings, are not entitled to bond. Ninth Circuit, in interpreting and commenter wrote in support of See INA 235(b)(2)(A); 8 CFR applying the FSA had already ruled proposed 8 CFR 236.3(m) because the 1003.19(h)(2)(i)(B). DHS, therefore, will against the government when it argued provision clarifies that minors detained maintain the proposed language of 8 that the limiting of bond hearings in DHS custody but not in section 240 CFR 236.3(m) in this final rule. applied to minors in DHS custody only. proceedings are ineligible to seek review DHS reiterates that the provision Many of the commenters pointed to a by an immigration judge of their DHS applies to minors in DHS custody; DHS quote from the court’s decision custody determination, consistent with has no authority to regulate custody discussing how the hearing is a ‘‘forum the TVPRA. Other commenters did not determinations for individuals in the in which the child has the right to be explicitly endorse the provision, but custody of another agency. See generally represented by counsel, and to have the acknowledged that it provided the INA 103(a)(3); 5 U.S.C. 706(2)(c) merits of his or her detention assessed protections and processes required by (considering agency regulations that are by an independent immigration judge.’’ the FSA. ‘‘in excess of statutory jurisdiction’’ to Another commenter also wrote that the Response. For responses to comments be unlawful). In accordance with the TVPRA and the HSA do not supersede relating to the HHS proposed hearings relevant savings and transfer provisions the FSA or allow for inconsistent in 45 CFR 410.810, please see below in of the HSA, see 6 U.S.C. 279, 552, 557; standards, which the commenter the HHS section by section comment see also 8 U.S.C. 1232(b)(1), the ORR believed would result from the analysis under § 410.810. Director now possesses the authority to DHS agrees with commenters that the implementation of the proposed rule. promulgate regulations concerning proposed regulatory text at 8 CFR ORR’s administration of its Many commenters wrote that the 236.3(m) reflects the requirements of the responsibilities under the HSA and change threatened the due process FSA regarding existence of bond TVPRA. Commenters who disagree with rights of UACs. They stated that the redetermination hearings for minors in DHS’s limiting proposed 8 CFR proposed rule reverses a child’s right to DHS custody who are in removal 236.3(m) to minors in DHS custody cite a bond hearing and instead creates an proceedings pursuant to INA 240. The to a case relating to UACs and seem to agency-run administrative process that understanding that the term disregard the distinction between DHS’s poses threats to due process. These ‘‘deportation hearings’’ in paragraph proposed 8 CFR 236.3(m) and HHS’ commenters wrote that as a matter of 24(A) of the FSA refers to what are now proposed 45 CFR 410.810 custody policy, immigration judges are best known as removal proceedings has been redetermination regulations for UACs. suited to rule on UAC bond hearings, as reiterated throughout the Flores The commenters aver that minors other they have the relevant background and litigation. See Order Re: Plaintiff’s than those in DHS custody are entitled knowledge base to understand the Motion to Enforce at 2 n.2, Flores v. to individualized custody hearings. situation and determine the appropriate Sessions, No. 85–4544, (C.D. Cal. Jan. Though it is true under governing case course of action. Some of these 20, 2017) (‘‘The Court will therefore law that paragraph 24(A) applies to both commenters objected to the standard of treat ‘‘deportation proceedings’’ as accompanied and unaccompanied proof required in bond hearings and written in the Flores Agreement as minors in removal proceedings such said it should be by clear and synonymous with ‘‘removal that those aliens are entitled to convincing evidence. They reasoned proceedings.’’); see also Flores v. individualized custody assessments, that the clear and convincing evidence Sessions, 862 F.3d 863, 869 n.5 (9th Cir. proposed 8 CFR 236.3(m)—as a DHS standard governs almost all civil 2017) (‘‘Administrative removal regulation—cannot extend to the cases detentions, with the exception of proceedings to determine a non-citizen’s of UACs in ORR custody. The paragraph immigration detention, and a higher right to remain in the United States have expressly applies only to ‘‘minors in standard of proof should be applied been re-designated as ‘removal’ rather DHS custody;’’ by its terms, the group where children’s rights are at stake. than ‘deportation’ under the Illegal covered in this regulation does not Similarly, one commenter stated that Immigration Reform and Immigrant overlap with the group addressed in the the burden should never be on the child Responsibility Act of 1996 (IIRIRA), Ninth Circuit’s 2017 Flores decision. to show that he or she is not a danger Pub. L. 104–208, 110 Stat. 3009 The Departments refer commenters to to the community or a flight risk and (1996)’’). Accordingly, the terms of FSA HHS’ response below, with respect to asked that the burden be on the paragraph 24(A) requires bond the hearings under 45 CFR 410.810. government, not the minor. Commenters redetermination hearings solely for Though DHS and HHS hearings are also suggested that children and those aliens who are in removal separate and distinct from one another, families should have access to legal proceedings under INA 240 and who are both Departments are issuing counsel throughout the ‘‘immigration otherwise entitled to bond under regulations that are consistent with the pathway’’ and that alternatives to relevant Executive Office for FSA, HSA, and the TVPRA, and are detention, specifically ‘‘community- Immigration Review regulations. Minors justified by the different roles of each based case management’’ should be the who are in proceedings other than agency. government’s default policy. Another removal proceedings under INA 240 Proposed § 236.3(a)(1) codifies the commenter wrote urging the (i.e., expedited removal proceedings) are FSA’s general policy statement, found appointment of child advocates, not entitled to bond hearings under the in paragraph 11 of the FSA, that minors hearings within 48 hours of request by FSA. Under the INA, minors in and UACs in DHS custody shall be

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treated with dignity, respect, and 14. Retaking Custody of a Previously Several commenters cited a recent special concern for their particular Released Minor § 236.3(n) ruling on Saravia v. Sessions, No. 18– vulnerability. The proposed language at Summary of Proposed Rule 15114 (9th Cir. 2017), by the U.S. Court § 236.3(m) does not represent a shifting of Appeals for the Ninth Circuit, which DHS proposed revisions to § 236.3(n) in the burden of proof applicable in held that immigrant children are to state that if a minor is an escape-risk bond proceedings for minors in DHS entitled to prompt hearings in which the (as defined at § 236.3(b)(6)), a danger to custody. Aliens in DHS custody who are Government bears the burden of the community or has a final order of demonstrating why there was a material seeking bond have the burden to show removal, DHS may take the minor back that they do not present a danger or change in circumstances. One into custody. The proposed regulation commenter recommended the flight risk. See Matter of Guerra, 24 I&N adds language to explain that if the government immediately provide Dec. 37, 40 (BIA 2006). Immigration minor no longer has a parent or legal minors and UACs who are taken back Judges have broad discretion in guardian available to provide care and into custody with an opportunity to determining whether an alien merits physical custody, the minor will be contact family members as well as their release on bond. See id. But the treated as a UAC and DHS will transfer attorneys. regulations maintain language from the him or her to the custody of HHS. One commenter stated that children FSA provision which specifies that a Public Comments and Response who have been released from custody minor be given notice of the right to are at risk of receiving a final order of judicial review in the United States Comments. Several commenters removal, and thus subject to DHS District Court.36 Thus, the proposed discussed § 236.3(n) in the proposed retaking custody, because they have a language does not represent a shift from rule, which would provide for DHS to higher risk of missing a court current practices. retake custody of a child when there is appearance for reasons that are not a material change of circumstances Moreover, minors in DHS custody are intentional. This may be because they indicating the child is an escape risk, a are under the control of the sponsor, accorded rights in bond proceedings danger to the community, or has a final lack the resources to travel to the that extend to aliens generally. An alien order of removal. Several commenters immigration court, or are unable to in DHS custody who is otherwise expressed concern that § 236.3(n) is independently seek legal counsel to entitled to bond may seek a bond overly broad, is inconsistent with the assist with attendance. Several hearing before an immigration judge FSA, or does not include adequate commenters opined that the rule would prior to the filing of the Notice to procedural safeguards to protect a result in the increased policing of Appear containing the charges of child’s rights. immigrant and non-immigrant members removability. An alien may submit One commenter stated that neither the of communities of color in the country. evidence and present arguments as to FSA nor the current regulations provide Response. DHS disagrees with whether his or her release is authorized for retaking custody of previously commenters’ statements that this under the immigration laws and released juveniles if a juvenile becomes provision presents a ‘‘danger of arbitrary whether he or she merits release as a an escape-risk, becomes a danger to the application.’’ Currently, there are no matter of discretion. An alien may be community, or receives a final order of regulatory provisions for retaking represented by an attorney or other removal after being released. The custody of a previously released minor. representative of his or her choice at no commenter stated that this violates the Therefore, this provision is intended to expense to the government; Congress FSA and lacks any limitations or provide regulatory guidance and clarity procedural safeguards, including any has not provided for government-funded where it currently does not exist. As independent review of the decision to counsel in bond proceedings, or in fact, noted in the NPRM, a material change retake custody of a child following in circumstances could potentially be in any immigration proceedings. Minors release from ORR. The commenter triggered by a released minor later subject to 236.3(m) are necessarily not additionally suggested, without becoming an escape-risk, becoming a UACs without a parent or legal guardian providing any data to support this, that danger to the community, receiving a in the United States available to provide for-profit detention facilities would final order of removal, and/or if there is for their care and physical custody. benefit from this as it would increase no longer a parent or legal guardian Moreover, bond hearing standards are the number of detained persons and available to care for the minor. DHS not so complicated that many minors DHS could use the proposed regulation notes that the FSA’s definition of escape without representation would be unable to retake custody of a child following an risk allows consideration of, inter alia, to participate in a bond hearing with the accidental or erroneous in absentia final whether ‘‘the minor has previously assistance of an immigration judge. order of removal. absconded or attempted to abscond from Aliens may appeal bond Another commenter expressed INS custody.’’ This rule would redetermination decisions made by an concern that the proposed rule presents specifically identify absconding from immigration judge to the Board of a danger for arbitrary application and any Federal or state custody as a Immigration Appeals and are informed needless traumatization. In considering relevant factor, not just the custody of of their right to review. See 8 CFR retaking custody, this commenter INS or its successor agencies. This 1236.1(d)(4); 1003.19(f). recommended applying the standards change is consistent with the FSA, for transfer outlined in the ABA’s UC which provides only a non-exhaustive Changes to Final Rule Standards. list of considerations. The purpose of DHS declines to amend the proposed Several commenters also stated providing this regulatory clarity is to concerns about adequate procedural regulatory provisions regarding bond ensure that release and custody protections to challenge DHS’s actions determinations are generally informed hearings based on public comments. after retaking custody of a previously by the same factors for consideration released minor. One commenter wrote (i.e. if a minor is determined to be a 36 As previously stated, the rule does not itself that the regulation is silent on who danger to the community prior to provide for the right to judicial review as a regulation cannot vest Federal courts with bears the burden of proof that there is release, that minor may not be released. jurisdiction. a material change in circumstances. Likewise, if that minor later becomes a

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danger to the community, DHS seeks to collections of information regarding the the process to receive additional data regain custody of that minor). placement of minors in more restrictive points or statistical inquiry suggestions; In response to comments about the or secure facilities. Additionally, the etc. lack of procedural safeguards, including commenters claimed that the proposed Some commenters objected to the burden of proof and independent review regulation omits associated FSA elimination of the third-party of custody determinations, DHS notes provisions requiring the Juvenile monitoring by Flores plaintiffs’ counsel that minors who are not UACs and who Coordinator to share reports with and oversight of compliance with the are taken back into DHS custody may Plaintiffs’ counsel and permit Plaintiffs’ FSA that results when the FSA is request a custody redetermination counsel to engage with the Juvenile terminated. The commenters recounted hearing in accordance with 8 CFR Coordinator regarding implementation recent reports and lawsuits before and 236.3(m) of this rule and to the extent of the FSA. Another commenter after the proposed rule was published permitted by 8 CFR 1003.19. complained that the proposed rule that they allege demonstrate the DHS notes the recommendation to would direct the collection of Government has not followed the terms ensure that minors and UACs who are information about minors who had been of the FSA with respect to monitoring.37 taken back into custody are immediately held in CBP or ICE custody for longer Some of these examples involved ORR, provided with an opportunity to contact than 72 hours, but this scenario would (i.e., a July 2018 court order in Flores v. family members or legal counsel. These not require DHS to do anything with Sessions regarding Shiloh Residential provisions and other detention this information or to provide it for Treatment Center and prescription of standards are incorporated into independent oversight and review, or psychotropic medications, as well as § 236.3(i) describing standards for corrective action. A few commenters placement in secure and staff-secure detention of minors in DHS custody cited that paragraph 28(A) of the FSA shelters and residential treatment who are not UACs. requires a weekly collection of specific centers (RTCs), and certain policies Changes to Final Rule data from all ICE and CBP district regarding release (such as requiring offices and Border Patrol stations; post-release service providers to be in DHS declines to amend the proposed place prior to release)). The commenter regulatory provisions regarding retaking however, the proposed rule does not set forth how frequently data collection is also noted the appointment of a Special custody of previously released minors Master/Independent Monitor in October based on public comments. required, nor does it require CBP/ICE to collect the same types of information. 2018, to monitor compliance with the 15. Monitoring § 236.3(o) Another commenter added that the court’s orders and to make findings of fact reports and recommendations.38 Summary of Proposed Rule proposed regulations provided no mandatory qualifications for the The commenter claimed that the ability The terms contained in the proposed Juvenile Coordinator and the of Flores counsel to interview detained rule required CBP and ICE each to requirements necessary to become one children in a confidential way allows identify a Juvenile Coordinator for the are broad and unclear. As general them to share information about how purpose of monitoring statistics about practice, the commenter advised that they are being treated and has been UACs and minors who remain in DHS any government official charged with critical to identify ill-treatment and non- custody for longer than 72 hours. The making placement determinations for compliance with FSA standards. statistical information may include, but children, particularly children who Response. Although commenters are would not be limited to, biographical have experienced trauma, should be concerned that the proposed regulation information, dates of custody, required to have child welfare § 236.3(o) limits the monitoring and placement, transfers, removals, or experience and qualifications, rather oversight of the Government’s releases from custody. The juvenile than law enforcement expertise. responsibilities set forth in the FSA, coordinators may collect such data, if Another commenter recommended such concerns are misplaced. Many of appropriate, and may also review expanding immigration courts and the data collection, monitoring, and additional data points should they deem appointing guardians for children so oversight provisions included in the it appropriate given operational changes they are not alone in the process. FSA are provisions that were included and other considerations. Commenters expressed concern with to guide the operation of the agreement Public Comments and Response the Juvenile Coordinators provision, itself and, as such, are not relevant or substantive terms of the FSA. The FSA, Comments. Multiple commenters which allows for collection of hearing as modified in 2001, provides that it expressed concern that DHS’s proposed dates and ‘‘additional data points will terminate 45 days after publication changes would remove important should they deem it appropriate given of final regulations implementing the protections for children by limiting operational changes and other agreement and accordingly, the terms monitoring and oversight performed by considerations’’ for aliens in DHS that are not relevant or substantive, such agencies; decreasing data collection custody. The commenters voiced as certain requirements to report to requirements; eliminating attorney concern that statement is extremely plaintiffs’ counsel and to the court, will monitoring responsibilities; and broad and does not provide meaningful cease to apply to the parties to the implementing vague or broad Juvenile standards for monitoring. The agreement. DHS, in § 236.3(o), is Coordinators duties that lack standard commenter cited the legal case of adopting a policy specifically to provide and omitted provisions of the FSA. Checkosky v. SEC, 139 F.3d 221, 226 for the data collection and monitoring to Some commenters expressed concern (D.C. Cir. 1998). This commenter with respect to the proposed rule’s recommended the Government 37 See, e.g., DHS OIG, ICE’s Inspection and Juvenile Coordinator monitor provision. withdraw the rule or provide specific Monitoring of Detention Facilities Do Not Lead to Although a few of the commenters information about the persons to whom Sustained Compliance or Systemic Improvements: acknowledged that language in the Juvenile Coordinators will report; DHS OIG Highlights (OIG–18–67), June 26, 2018 proposed rule in part reflects operational changes and who would https://www.oig.dhs.gov/sites/default/files/assets/ determine them; accountability; 2018-06/OIG-18-67-Jun18.pdf. monitoring provisions in FSA paragraph 38 Flores v. Sessions, CV 85–4544–DMG, at 2 (C.D. 28A, the commenters argued that the recordkeeping; resources; qualifications Cal. Oct. 5, 2018), Order Appointing Special proposed rule omits important for Juvenile Coordinators; data sharing; Master/Independent Monitor.

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assist in its own internal monitoring, The commenters’ concerns that this monitor compliance and allows the and while the provisions reflect those, rule omits important collection of Juvenile Coordinators flexibility to as set forth under paragraph 28A of the information regarding the placement of consider other data points (including FSA, such provision is an internal minors in more restrictive or secure immigration court hearing dates) as agency practice. The provisions of facilities misapprehends the omission of appropriate given operational changes paragraph 28A exist solely in order for collection of reasons for placement in a and other considerations. Checkosky, the Court and plaintiff’s counsel to detention facility or medium secure 139 F.3d at 226, in which the U.S. monitor compliance with the terms of facility. In the discussion to proposed Circuit Court for the District of the Agreement on behalf of the Class regulation § 236.3(b)—Definitions, DHS Columbia dismissed disciplinary (see, for example, paragraph 28B explains that it does not propose to proceedings against two accountants regarding what plaintiff’s counsel adopt the FSA’s term ‘‘medium security after the SEC issued multiple should do if the reporting and facility’’ because DHS does not maintain inconsistent interpretations of a monitoring lead to reasonable suspicion any medium security facilities for the Commission rule, is inapposite here, that a minor should have been temporary detention of minors and the since the proposed regulation and released.). That of monitoring provision definition is now unnecessary. In discussion make clear the statistical for counsel is not appropriate for addition, § 236.3(o) includes the information to be collected and that the Federal regulations. Moreover, this rule ‘‘reasons for a particular placement’’ in Juvenile Coordinators have discretion to will result in the termination of the FSA the list of statistical information that collect and review additional data making that type of monitoring may be collected routinely by the points where appropriate. DHS declines provision inapt. Juvenile Coordinators, and both the to provide more specific information, as The current regulations at 8 CFR discussion of the proposed regulation the proposed regulation already 236.3(c) describe the duties of the and § 236.3(o) itself propose two provides information adequate to the Juvenile Coordinator, including the Juvenile Coordinators—one for ICE and task of the Juvenile Coordinator and the responsibility of locating suitable one for CBP—and charge each with information covered by paragraph 28A placements for juveniles. The language monitoring compliance with the of the FSA. proposed at § 236.3(o) will provide for requirements of these regulations, and DHS has carefully considered monitoring by the Juvenile with monitoring statistics about UACs commenters’ proposal to continue Coordinators. This regulation will also and minors who remain in DHS custody monitoring by and reporting to Flores counsel to enforce the FSA but declines eliminate the requirement in the current for longer than 72 hours. This requirement to collect statistical to adopt it based on the parties’ regulations that the Juvenile information about UACs and minors agreement in 2001 that the FSA will Coordinator locate a suitable placement who remain in CBP or ICE custody for terminate 45 days after publication of for minors, as these duties are generally longer than 72 hours will necessarily final regulations implementing the exercised by immigration officers and capture the data set forth in paragraph agreement. DHS is unable to comment other employees at DHS (or by HHS and 28A of the FSA without reference to on pending litigation concerning the its grantees for UACs). The Juvenile location or frequency of collection. The FSA but notes that, though not required, Coordinator as described in the FSA is proposed regulation specifies the the final regulation will codify the tasked with overseeing the compliance statistical information to be collected as monitoring and statistical information with the FSA. The CBP and ICE Juvenile a baseline and allows the Juvenile collection requirements in paragraph Coordinators as described in the Coordinators to review additional data 28A of the FSA, which do not exist in proposed regulation will be tasked with points as appropriate given operational the current regulations. overseeing CBP and ICE’s compliance changes or other considerations. DHS DHS also disagrees with the with the regulations. This monitoring believes that the commenter’s concern suggestion that it has failed to provide may involve whatever actions the that the proposed regulation contains no adequate oversight over its detention Juvenile Coordinators determine is mandatory qualifications for the facilities. DHS is committed to ensuring appropriate to monitor compliance, Juvenile Coordinator and that any adequate oversight over its facilities. As (including, for instance, conducting government official charged with described above, ICE FRCs are subject to facility visits, reviewing agency policies making placement decisions should be regular audits by outside entities. and procedures, or interviewing required to have child welfare Additionally, all DHS facilities (both employees and/or detainees). They will experience is misplaced. Section CBP and ICE) are subject to inspection not make placement decisions. 236.3(o) eliminates the requirement in and monitoring by bodies such as the As the FSA requires, the Juvenile the current regulation at 8 CFR 236.3(c) DHS OIG, DHS CRCL, and the GAO. Coordinators will also continue to that the Juvenile Coordinator locate DHS is also making it clear in this final collect data about placement in a suitable placements for minors. DHS rule that the CBP and ICE Juvenile detention facility. DHS notes that this declines to adopt the commenter’s Coordinators will have responsibility for data is currently collected by the ICE suggestion as the Juvenile Coordinators monitoring compliance with these Juvenile Coordinator, as CBP does not are not responsible for placement regulations, and not merely the maintain data about a minor’s determinations. responsibility to maintain statistics. placement in a detention facility. DHS rejects the suggestion that the Such monitoring of ongoing compliance Collecting data will be an additional text allowing Juvenile Coordinators to may include oversight of DHS facilities. part of the Juvenile Coordinator’s duties collect information on hearing dates if The purpose of this change is to ensure (in addition to their role monitoring appropriate and ‘‘additional data points that an independent monitor will compliance with the terms of the should they deem it appropriate given remain in place to help to ensure that regulations). In this final rule, DHS is operational changes and other all DHS facilities satisfy applicable amending the regulatory text to clarify considerations’’ is overbroad and ill- standards at all times. that the Juvenile Coordinator’s duty to defined. The proposed regulation allows collect statistics is in addition to the the Juvenile Coordinators to collect the Changes to Final Rule requirement to monitor compliance statistical information, as under DHS is amending the regulatory with the terms of the regulations. paragraph 28A of the FSA, relevant to provisions to make it more clear that the

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Juvenile Coordinators will monitor ‘‘expanded’’ definition of ‘‘emergency’’ An organization recommended that compliance with the requirements of would grant DHS too much discretion to DHS and HHS provide explanation and these regulations and, as an suspend compliance with certain FSA evidence of the need to expand the independent requirement, maintain provisions relating to standards of care current definition and compile a statistics related to the placement of and custody for children, such as timely comprehensive list of permissible minors and UACs. transport or placement of minors and emergency circumstances. other conditions implicating their basic Two organizations recommended that Section-by-Section Discussion of the services. the proposed rule should clarify the HHS Proposed Rule, Public Comments, Some commenters expressed concern circumstances under which emergency and the Final Rule that events other than a natural disaster, waivers would be implemented, that Subpart A—Care and Placement of facility fire, civil disturbance, medical any such exemptions be limited in Unaccompanied Alien Children (45 CFR or public health concerns might also scope and ensure that the fundamental part 410) Definitions (45 CFR 410.101) qualify as an emergency, leaving needs of children are met, regardless of the circumstances requiring a waiver. DHS significant room for interpretation. Several commenters argued that the Several organizations and individual Summary of Proposed Rule phrase ‘‘other conditions’’ would commenters recommended that from a HHS proposed to define ‘‘DHS’’ as the implicate the basic needs of the public health perspective, designation Department of Homeland Security. This children, including timely transfer, of an emergency should trigger term is not defined in the FSA. provision of snacks and meals, additional resources, prepared in prolonged detention, and would further advance through contingency planning Public Comments and Response jeopardize their well-being, health, and and made available through standing HHS did not receive any comments safety and runs contrary to the explicit mechanisms. Response. HHS notes that paragraph requesting a change to this definition. placement context of the FSA. 12(B) of the FSA defines an emergency Other commenters had specific Changes to Final Rule as ‘‘any act or event that prevents the objections to the proposed definition. placement of minors pursuant to HHS is not making any changes to One organization argued that the this definition in the final rule. paragraph 19 within the time frame proposed rule defines emergency in a provided’’ (i.e., three days or five days, Director circular manner because the term is as applicable). The FSA also contains a primarily defined as an event that Summary of Proposed Rule non-exhaustive list of acts or events that prevents compliance. constitute an emergency, such as HHS proposed to define ‘‘director’’ as A coalition expressed concern that the ‘‘natural disasters (e.g. earthquakes, the Director of the Office of Refugee proposed provision that minors must be hurricanes, etc.), facility fires, civil Resettlement (ORR), Administration for transferred ‘‘as expeditiously as disturbances, and medical emergencies Children and Families (ACF), possible,’’ can be broadly interpreted, (e.g. a chicken pox epidemic among a Department of Health and Human instead of a defined period of three to group of minors).’’ HHS notes that the Services. This term is not defined in the five days. The same commenter also definition of emergency contained FSA. argued that this provision contravenes within this provision does not depart the TVPRA because it creates exceptions Public Comments and Response from how the FSA defines an emergency to the 72-hour timeframe for the act or event. Rather, this provision HHS did not receive any comments required transfer of UACs to ORR that recognizes that, in rare circumstances, requesting a change to this definition. do not meet the high bar of ‘‘exceptional an emergency may arise, possibly circumstances’’ as intended under the Changes to Final Rule unanticipated, that impacts more than TVPRA. just the transfer of UACs from one HHS is not making any changes to An organization expressed concern facility to another. As indicated in the this definition in the final rule. that the proposed rule replaces the term NPRM, the impact, severity, and timing Emergency ‘‘medical emergencies’’ with ‘‘medical of a given emergency situation dictate or public health concerns at one or more the operational feasibility of providing Summary of Proposed Rule facilities,’’ which would broaden the certain elements of care and custody to HHS proposed to define ‘‘emergency’’ possible application of emergencies, UACs, and thus the regulations cannot as an act or event (including, but not allowing for a possible emergency in capture every possible reality HHS will limited to, a natural disaster, facility instances where several minors lack key face. The applicability of ‘‘emergency’’ fire, civil disturbance, or medical or vaccinations, or where a few minors is intended to be flexible to the extent public health concerns at one or more may require treatment for chronic it fits within the parameters set forth by ORR facility) that prevents timely conditions such as asthma or diabetes. the FSA. Therefore, HHS disagrees with transport or placement of UACs, or An organization expressed concern commenters’ assertion that the impacts other conditions provided by that implementation of the proposed definition of emergency creates ‘‘too this part. This definition incorporates definition would take away the ability much discretion’’ or allows HHS to the existing text of the FSA except for to monitor or check the decision declare an emergency ‘‘for whatever HHS’ recognition that emergencies may whether to deem a situation as an reason.’’ not only delay placement of UACs, but emergency, as well as the conditions HHS also notes that, during an could also delay compliance with other that would result from such a emergency situation, it continues to provisions of the proposed rule or determination and recommended that make every effort to provide all required excuse noncompliance on a temporary the Departments provide the basis services and provide for UACs’ needs basis. arriving at these definitions; provide a under the FSA as expeditiously as timeframe for how long may an possible. Depending on the severity of Public Comments and Response emergency last; and provide for the the emergency, however, the provision Comments. Several commenters consequences for invoking the of one or more FSA requirements may expressed concern that the proposed emergency when unwarranted. be temporarily delayed for some UACs.

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For instance, if a facility is located in an reviewing the American Bar argued that they operate within a area that is forecasted to be impacted by Association’s UC Standards, and constant state of influx even while a hurricane and the UACs must be clarifying roles and responsibilities overall border crossings are 20 percent evacuated to another facility, it may be regarding the officials who have the of what they were when that term was necessary to temporarily delay the authority to declare an emergency. defined in the FSA and border staffing provision of meals to those UACs during has increased by almost three times. Changes to Final Rule the time required to evacuate the A few commenters argued that the facility. However, as soon as the UACs HHS is not making any changes to 130-influx standard also failed to arrive at the other facility, ORR would this definition in the final rule. account for the expansions and resume the provision of meals to those Escape Risk contractions of the number of UACs in UACs. Similarly, if a facility suffers an border custody, which have fluctuated electrical failure, such that the air Summary of Proposed Rule by tens of thousands of juveniles every conditioning breaks, all UACs in that HHS proposed to define ‘‘escape risk’’ year since the peak in 2014. The facility may temporarily be held in as a serious risk that a UAC will attempt variable yearly numbers of UACs temperatures that do not comply with to escape from custody. HHS is adopting require a more flexible influx baseline. the FSA. ORR would work to rectify the this definition without change from the Some commenters objected to the problem as quickly as possible, and FSA. proposed definition of influx on the would take steps to mitigate the basis that it enables each agency to problem (e.g., providing extra fans for Public Comments and Response excuse noncompliance even where it is the facility). Once the air conditioning HHS did not receive any comments not itself experiencing influx is fixed, however, the UACs would requesting a change to this definition conditions. Commenters stated that DHS return to FSA-compliant conditions. that specifically named HHS, although conceded in the NPRM that it has HHS also notes that placing UACs in please see the section of the preamble continuously been dealing with an licensed programs ‘‘as expeditiously as discussing § 236.3(b)(6) for responses to influx of minors for years. The possible’’ is consistent with the spirit of comments DHS received regarding its commenters claimed that as a result, the FSA’s language, but is also a more definition of escape risk. even where HHS may not satisfy the appropriate standard, since it provides ‘‘influx’’ criteria itself, it may rely on Changes to Final Rule the flexibility needed to respond to DHS’s ‘‘influx’’ conditions because the emergencies on a case-by-case basis. We HHS will not be making any changes definition allows HHS criteria to be met interpret ‘‘as expeditiously as possible’’ to this definition in the final rule. ‘‘under . . . corresponding provisions of as what is reasonably possible Final Rule DHS regulations.’’ considering the circumstances of the One commenter recommended that particular emergency. At the same time, Escape risk means there is a serious the agencies include a third alternative HHS notes that the requirements of the risk that an unaccompanied alien child criterion for designation of influx TVPRA still apply to transfers of UACs (UAC) will attempt to escape from conditions to track the meaning of to ORR custody, and that the custody. influx in the INA. The INA recognizes ‘‘exceptional circumstances’’ standard Influx the threat posed to national security would still apply even with the where the Secretary of Homeland publication of this final rule. Summary of Proposed Rule Security ‘‘determines that an actual or In response to one commenter’s The NPRM proposed to define imminent influx of aliens arriving off concern that the proposed rule replaces ‘‘influx’’ as a situation when 130 or the coast of the United States, or near a the term ‘‘medical emergencies’’ with more minors or UACs are eligible for land border, presents urgent ‘‘medical or public health concerns at placement in a licensed facility under circumstances requiring an immediate one or more facilities,’’ which would this part or corresponding provisions of federal response.’’ 8 U.S.C. 1103(a)(10). broaden the possible application of DHS regulations, including those who The commenter urged the agencies to emergencies, HHS respectfully have been so placed or are awaiting consider a regulation that would define disagrees, and notes that the rule is such placement. HHS is adopting this ‘‘urgent circumstances’’ to include the consistent with the FSA. The FSA definition without change from the FSA release without bond of a significant provides, as an example of a medical with the clarification that DHS will percentage of such minors, with or emergency, ‘‘a chicken pox epidemic maintain custody of UACs pending their without a parent or legal guardian, near among a group of minors.’’ The language transfer to ORR. to the relevant Coast Guard or Border of the rule is consistent with this Patrol sector. The commenter ultimately example. HHS disagrees that the rule Public Comments and Response proposed that influx conditions could would broaden the scope of medical Comment. Numerous commenters exist when some combination of three emergencies beyond what is already expressed concern that the proposed criteria were present—the legacy FSA contemplated by the FSA. definition of ‘‘influx’’ was developed criterion of 130 minors, an alternative Although many of the comments are based on data from the 1990s and is criterion that takes into account the beyond the scope of the FSA and the outdated, and, if implemented, will problems created by lack of resources purposes of this rule in implementing result in DHS and HHS operating within other than bed space, and a third the FSA, HHS will consider a de facto permanent state of ‘‘influx.’’ criterion that aligns influx designations incorporating commenters’ If able to operate in that status, the for minors with designations of influx recommendations into the written commenters contended that DHS and conditions applicable to humanitarian guidance implementing this provision, HHS would have broad discretion to entry in general. The commenter as appropriate and to the extent they do circumvent compliance with the FSA, contended that such a standard would not conflict with the FSA or other HSA, and TVPRA provisions and the provide flexibility to respond effectively governing statutes. This includes but is time limits on transferring children out to migrant crises that involve minor not limited to the recommendations to of DHS custody. aliens in unpredictably dangerous ways. mandate contingency planning if an Many commenters expressed the view One commenter maintained that, emergency situation can be anticipated, that DHS and HHS disingenuously because the proposed rule changes the

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word ‘‘program’’ to ‘‘facility,’’ it could HHS is the primary regulator of influx Administration for Children and permit lengthier detention by a care facilities and is responsible for Families, Department of Health and determination that there is an influx their oversight, operations, physical Human Services. This term is not when more than 130 children are plant conditions, and service provision. defined in the FSA. eligible for placement in any of the States do not license or monitor ORR program’s facilities, even if the program influx care facilities because they are Public Comments and Response has the capacity to provide placement located on Federal enclaves. However, HHS did not receive any comments resources for well over 130 children. ORR influx care facilities operate in requesting a change to this definition. The commenter viewed the proposed accordance with applicable provisions definition of influx as placing less focus of the FSA, HSA of 2002, TVPRA, the Changes to Final Rule on the needs of children than on the Interim Final Rule on Standards to proposed facilities to detain them. Prevent, Detect, and Respond to Sexual HHS is not making any changes to Some commenters were concerned Abuse and Sexual Harassment Involving this definition in the final rule. that the proposed definition of influx Unaccompanied Alien Children, as well Secure Facility lifts the requirement that UACs be as ORR policy. transferred from DHS to HHS custody For the purposes of continuity of joint Summary of Proposed Rule within three to five days, and allows for operations and for the reasons DHS HHS proposed to define a ‘‘secure explains above, HHS adopts the same broad exemptions to existing child facility’’ as a State or county juvenile definition of influx. DHS’s response to protections that could impact basic detention facility or a secure ORR comments related to the definition of needs, such as the provision of snacks detention facility, or a facility with an influx can be found above in the and meals to children in custody. The ORR contract or cooperative agreement Section-by-Section Discussion under commenters stated the rule should be having separate accommodations for Influx § 236.3(b)(10). changed to clarify that any such minors. A secure facility does not need exemptions must be limited in scope Changes to Final Rule to meet the requirements of § 410.402, and ensure that the fundamental needs and is not defined as a ‘‘licensed of children are met in a timely manner. HHS is not making any changes to this definition in the final rule. program’’ or ‘‘shelter’’ under this part. Response. When there is a sharp This term is not defined in the FSA, but increase, or ‘‘influx,’’ in the number of Licensed Program is consistent with the provisions of the UACs entering the United States and FSA applying to secure facilities. Federal agencies are unable to transfer Summary of Proposed Rule them into state-licensed, ORR-funded HHS proposed to define a ‘‘licensed Public Comments and Response care provider facilities in a timely program’’ as any program, agency, or manner, ORR places certain UACs at an organization that is licensed by an Comment. Most public comments influx care facility. It is important to appropriate State agency to provide regarding the definition of secure were note that HHS does not enforce residential, group, or foster care services directed towards the DHS portion of the immigration laws or implement for dependent children, including a rule. HHS did receive several comments immigration policies. HHS provides program operating group homes, foster regarding the placement of UAC in shelter, care, and other essential homes, or facilities for special needs secure facilities; those comments and services to UACs, while working to UACs. All homes and facilities operated responses are captured in the discussion release them to appropriate sponsors, by a licensed program, including of §§ 410.203 and 410.205. Regarding often members of the child’s family, facilities for special needs UACs, are the definition of secure as it relates to without unnecessary delay. non-secure as required under State law. the facility’s physical plant, one Periodically, ORR operates influx care However, a facility for special needs commenter stated that the definition of facilities to meet its statutory obligations UACs may maintain a level of security non-secure does not comport with the to care for UACs transferred from DHS, permitted under State law which is intent of the FSA in the following areas: during a time of high numbers of necessary for the protection of UACs or secure external fencing and locks arrivals. ORR maintains the ability to others in appropriate circumstances (internal and external) effecting egress. rapidly set-up, expand, or contract (e.g., cases in which a UAC has drug or Response. The term ‘‘secure’’ is not influx infrastructure and services as alcohol problems or is mentally ill). defined in the FSA, however, HHS finds needed. ORR has detailed policies that HHS is adopting this definition without that the definition of ‘‘secure’’ in the set forth criteria for when UACs may be change from the FSA with the proposed rule is consistent with the placed at an influx care facility. Some clarification that the standards a provisions in the FSA applying to of the criteria include a minor’s age (the licensed program must meet are set secure facilities. In addition, HHS is minor must be between 13 and 17 years forth in § 410.402 of this rule instead of committed to ensuring the security, of age), medical and behavioral health Exhibit 1 of the FSA. safety, and well-being of all UACs, conditions (no known special needs or Public Comments and Response many of whom fled dangers in their issues), sibling status (no accompanying home countries and endured abuse siblings below the age of 12), and HHS did not receive any comments along their journey to the United States. pending reunification status (ability to requesting a change to this definition. Some children remain under threat of be discharged to a sponsor Changes to Final Rule continued harm, including trafficking, expeditiously), among other fraud, ransom demands, and gang considerations. (For a complete list of HHS is not making any changes to violence. Therefore, any security the requirements, please see the ORR this definition in the final rule. measures, such as fences and locked Policy Guide, Section 1.7.3 Placement ORR points of entry, are for the safety of into Influx Care Facilities at https:// UACs, to supervise public access to www.acf.hhs.gov/orr/resource/children- Summary of Proposed Rule children, and protect them from harm, entering-the-united-states- HHS proposed to define ‘‘ORR’’ as the in keeping with child welfare practices unaccompanied-section-1#1.7.3) Office of Refugee Resettlement, in State-licensed facilities.

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Changes to Final Rule real emotional harm to people with Sponsor is comparable to the term HHS will not be making any changes mental and developmental disabilities. custodian, which is used but not to this definition in the final rule. The commenter acknowledged the term defined in the FSA. was used in the FSA agreement, but Public Comments and Response Shelter argued that it is inappropriate in a HHS did not receive any comments Summary of Proposed Rule modern-day regulation. Response. The regulatory language requesting a change to this definition. HHS proposed to define ‘‘shelter’’ as adopted the same definition of ‘‘special Changes to Final Rule a licensed program that meets the needs’’ as the definition used in the standards set forth in § 410.402. Shelters FSA. This definition includes any minor HHS is not making any changes to include facilities defined as ‘‘licensed whose mental conditions require special this definition in the final rule. facilities’’ under the FSA, and also services and treatment as identified Staff Secure Facility includes staff secure facilities (i.e., during an individualized needs Summary of Proposed Rule medium secure facilities as defined by assessment. HHS disagrees that the the FSA). Other types of shelters might definition should be expanded because HHS proposed to define a ‘‘staff also be licensed, such as long-term and the definition is broad enough to secure facility’’ as a facility that is transitional foster care facilities. include minors with developmental and operated by a program, agency, or Public Comments and Response learning disabilities, if the special needs organization licensed by an appropriate assessment determines that these State agency and that meets the HHS did not receive any comments standards for licensed programs set requesting a change to this definition. conditions require special services and treatment. forth in § 410.402. A staff secure facility Changes to Final Rule The proposed regulatory language is designed for a UAC who requires contains multiple provisions requiring close supervision but does not need HHS is not making any changes to placement in a secure facility. It this definition in the final rule. DHS and HHS to consider a UAC’s special needs, including provisions provides 24-hour awake supervision, Special Needs Minor requiring consideration of special needs custody, care, and treatment. It maintains stricter security measures, Summary of Proposed Rule when determining placement. For example, section 45 CFR 410.208 states such as intensive staff supervision, than HHS proposed to define a ‘‘special that ORR will assess each UAC to a shelter in order to control problem needs minor’’ as a UAC whose mental determine if he or she has special needs behavior and to prevent escape. A staff and/or physical condition requires and will, whenever possible, place a secure facility may have a secure special services and treatment by staff. UAC with special needs in a licensed perimeter but is not equipped internally A UAC may have special needs due to program that provides services and with major restraining construction or drug or alcohol abuse, serious emotional procedures typically associated with treatment for the UAC’s special needs. disturbance, mental illness or correctional facilities. The term ‘‘staff Section 8 CFR 236.3(g)(2) requires DHS retardation, or a physical condition or secure facility’’ is used in the same to place minors and UACs in the least chronic illness that requires special sense as the FSA uses the term restrictive setting appropriate to the services or treatment. A UAC who has ‘‘medium security facility.’’ minor or UAC’s age and special needs. suffered serious neglect or abuse may be Section 8 CFR 236.3(i)(4) requires that Public Comments and Response considered a special needs minor if the facilities conduct a needs assessment for UAC requires special services or HHS did not receive any comments each minor, which would include both treatment as a result of neglect or abuse. requesting a change to this definition. an educational assessment and a special This definition was adopted without needs assessment. Additionally, section Changes to Final Rule change from the FSA. 8 CFR 236.3(g)(1) requires DHS to HHS is not making any changes to Public Comments and Response provide minors and UACs with Form I– this definition in the final rule. 770 and states that the notice shall be Comment. Some commenters asked Unaccompanied Alien Child (UAC) for expanded definitions of ‘‘special provided, read, or explained to the needs minor’’ or additional provisions minor or UAC in a language and manner Summary of Proposed Rule relating thereto. One commenter stated that he or she understands. These HHS proposed to define a ‘‘UAC’’ as the definition should be broadened to provisions ensure that a minor’s or provided in 6 U.S.C 279(g)(2), which include developmental disability and UAC’s special needs are taken into states that a UAC is a child under the learning disability. The commenter account, including when determining age of 18 who has no lawful urged that it is important for children, placement. immigration status in the United States particularly unaccompanied children, to HHS agrees that the term and who has no parent or legal guardian be able to understand and follow ‘‘retardation’’ is outdated and is present in the United States or no parent instructions or directions given to them amending the regulatory language to or legal guardian in the United States is by Federal officials, attorneys, and care delete this term. DHS has also deleted available to provide care and physical custodians in licensed facilities. this term in its regulatory language. custody. When a child previously Another commenter contended that Changes to Final Rule determined to have been a UAC has the proposed rule does not adequately reached the age of 18, when a parent or discuss special needs, even though HHS removed the term ‘‘retardation’’ legal guardian in the United States is many immigrant children entering the from the final rule. available to provide care and physical United States have disabilities. Sponsor custody for such a child, or when such The commenter also condemned the a child has obtained lawful immigration use of the outdated term ‘‘retardation’’ Summary of Proposed Rule status, the child is no longer a UAC. A in the definition of special needs minor, HHS proposed to define ‘‘sponsor’’ as child who is no longer a UAC is not stating that the term is used as a slur an individual (or entity) to whom ORR eligible to receive legal protections that dehumanizes, demeans, and does releases a UAC out of ORR custody. limited to UACs.

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Public Comments and Response interpreted this term to include UACs is in the best interest of the child.’’ 8 Comments. Several organizations who may or may not meet the definition U.S.C. 1232(c)(2)(A). In making such believed that the proposed rule directly of ‘‘minor’’ in the FSA. Given the placements, ‘‘the [HHS] Secretary may contravenes the TVPRA and does not subsequent enactment of the TVPRA, consider danger to self, danger to the comport with the protective principles and the fact that HHS does not have community, and risk of flight.’’ Id. The of the FSA by giving HHS and DHS custody of juveniles who are not UAC, TVPRA also provides that ‘‘[a] child unconstrained discretion to determine HHS is expressly stating in this subpart shall not be placed in a secure facility absent a determination that the child who meets the definition of a UAC, that the provision applies to UACs and poses a danger to self or others or has which could result in minors losing not ‘‘minors’’ as a whole. been charged with having committed a current protections under the FSA and ORR Care and Placement of criminal offense.’’ Id. The commenters TVPRA. Unaccompanied Alien Children (45 CFR thus argued that Congress made clear One commenter recommended 410.102) that the ‘‘best interest of the child’’ striking proposed § 236.3(d) and the Subpart B—Determining the Placement evaluation permits placement in a final sentence of proposed § 410.101 of an Unaccompanied Alien Child (45 secure facility only under the limited and codifying the current initial CFR part 410) finding of a ‘danger to self or others’ or jurisdiction policy, as set forth in a criminal charge; no other grounds are USCIS’ 2013 guidance, which provided Purpose of This Subpart (45 CFR permissible, even those previously that USCIS would take initial 410.200) recognized in the FSA. In other words, jurisdiction based on a previous UAC Summary of Proposed Rule according to the commenters, 8 U.S.C. determination even after the applicant As stated in § 410.200, this subpart of 1232(c)(2)(A) prohibits secure turns 18 or is reunited with a parent or placement based on issues unrelated to legal guardian. the proposed rule set forth factors that ORR considers when placing UACs. the best interests of the child, such as Comments related to separate licensed shelter availability. As a result, definitions for minor and UAC, as Public Comments and Response the commenters argued that proposed by DHS in § 236.3(b)(1), are §§ 410.201(e) and 410.205 in the discussed above under the Section-by- None. Changes to the Final Rule. HHS is not proposed rule are inconsistent with the Section Discussion of the DHS Proposed terms of the FSA as amended by Rule, Public Comments, and the Final making any changes to proposed § 410.200 in the final rule. Congress by passage of the TVPRA. Rule. Response. HHS notes that consistent Response. HHS adopted the definition Final rule. 45 CFR 410.200—Purpose of this subpart. with the TVPRA, 8 U.S.C. 1232(c)(2)(A), of UAC as written in the HSA, 6 U.S.C under the proposed rule, ‘‘ORR places 279(g)(2), with no change. HHS must This subpart sets forth what ORR considers when placing a UAC in a each UAC in the least restrictive setting abide by this definition when evaluating that is in the best interest of the child if a child in HHS custody meets the particular ORR facility, in accordance with the FSA. and appropriate to the UAC’s age and definition of a UAC and, as such, does special needs, provided that such not have unconstrained discretion to Considerations Generally Applicable to setting is consistent with its interests to determine who qualifies as a UAC. the Placement of an Unaccompanied ensure the UAC’s timely appearance Operationally, HHS will continuously Alien Child (45 CFR 410.201) before DHS and the immigration court.’’ evaluate whether an individual is a Summary of Proposed Rule As specified in proposed rule § 410.203, UAC, because it is unlawful for HHS to however, ORR will only place a UAC in maintain custody of any child who has Section 410.201 of the proposed rule a secure facility if the UAC has been obtained lawful immigration status or addressed the considerations that charged with or is chargeable with a obtained 18 years of age while in generally apply to the placement of crime, or has been determined to pose custody. 6 U.S.C. 279(g)(2). HHS is UAC. The provision generally paralleled a danger to self or others. ORR does not required to promptly release from its the FSA requirements. The provision place UACs in a secure facility such as custody any individual who no longer noted that ORR makes reasonable efforts a State or county juvenile detention meets the HSA definition of a UAC. to provide placements in the geographic facility based on issues unrelated to the HHS notes that USCIS’ initial areas where DHS apprehends the best interests of the child. ORR does not jurisdiction policy was implemented for majority of UACs. ORR complied with consider emergency or influx facilities the purpose of administratively tracking this provision, as ORR maintains the to be secure facilities. a child’s case and is unconnected to the highest number of UAC beds in the state Comment. Section 410.201 of the services provided to the child. Once a of Texas where most UACs are currently proposed rule outlined factors that UAC is released from ORR care and apprehended. determine where a child is placed custody, the child is no longer Comment. Several organizations including the timely appearance of considered a UAC. HHS only tracks stated that the proposed rule conflicts children before DHS and the released children (former UACs) for the with the FSA and current laws that immigration courts. Two organizations provision of post-release case encourage the placement of children in commented that while this language is management and a safety and well-being the least restrictive setting and favor included in the FSA, it is not in the follow-up call. HHS has a system by release to a parent or family member. TVPRA, and this creates a conflict which to track these released children In jointly submitted comments, between the proposed regulation and for service provision. multiple legal advocacy organizations Federal law. They argued that a child’s argued that secure placement based on appearance in immigration court should Changes to Final Rule a lack of availability of licensed not be given priority over a child’s best Between the FSA and final rule, the placements is statutorily barred by the interest or special needs. One of these only change HHS is making is TVPRA. The commenters cited the advocacy organizations argued that the substitution of the word ‘‘minor’’ with TVPRA’s requirement that children proposed rule does not indicate how to the word ‘‘UAC.’’ The text of the FSA under HHS custody ‘‘shall be promptly prioritize each factor and that it allows only uses the term minors, and HHS has placed in the least restrictive setting that HHS and DHS to focus on ‘‘their own

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efficiencies for court and DHS not apply to these temporary influx TVPRA requires HHS to establish adjudications’’ instead of the best programs, HHS is the primary regulator policies and programs to ensure that interest of the child. of influx care facilities and is UACs are ‘‘protected from traffickers Response. HHS reiterates that this responsible for their oversight, and other persons seeking to victimize rule implements the terms of the FSA, operations, physical plant conditions, or otherwise engage such children in and these comments go beyond the and service provision. Influx care criminal, harmful, or exploitative scope of the rule. But in response, HHS facilities operate in accordance with activity.’’ 8 U.S.C. 1232(c)(1). Further, notes that the TVPRA at 8 U.S.C. provisions of the FSA, the HSA, the HHS operates under an Interim Final 1232(c)(2)(A), states that when placing TVPRA, the Interim Final Rule on Rule, which describes HHS’ UAC, the HHS Secretary (whose Standards to Prevent, Detect, and comprehensive approach to preventing, authority is delegated to ORR) may Respond to Sexual Abuse and Sexual detecting, and responding to allegations consider not only danger to self, and Harassment Involving Unaccompanied of sexual abuse, sexual harassment, danger to the community, but also risk Alien Children, as well as ORR policy. sexually inappropriate behavior. See of flight. Neither the TVPRA nor the UACs at temporary influx programs still Standards To Prevent, Detect, and FSA prescribe how ORR, in its have access to services to the greatest Respond to Sexual Abuse and Sexual discretion, is to evaluate the permissible extent possible UACs in ORR care at Harassment Involving Unaccompanied factors in determining placement of a influx facilities always have access to Children, 45 CFR part 411 (the ‘‘IFR’’). UAC. Like the TVPRA and the FSA, the showers and bedding, as well as Finally, in compliance with such IFR, rule describes general principles that necessary medical care services. ORR policies are designed to address govern placements of UACs. Also, ORR Additionally, § 410.101 defines UAC any allegations of abuse swiftly and notes that per its policy, see ORR Guide, according to the definition set forth in fully. As described in Section 5.5.2 of 1.4.1, ‘‘care providers must make every the HSA. The HSA and the TVPRA only the ORR Guide, in addition to the effort to place and keep children and give ORR the authority to provide care routine monitoring process, ORR has an youth in a least restrictive setting. For and custody to individuals who meet Abuse Review Team (ART) to review children who are initially placed in a that definition. DHS, not ORR, has the allegations of abuse (physical, sexual, least restrictive setting, care providers authority to detain minors and their negligent treatment) that are particularly must provide support services and family members together. serious or egregious. The team is effective interventions, when Comment. Several commenters composed of ORR staff with the appropriate, to help keep a child in the including medical doctors and mental appropriate expertise to assess and setting.’’ Moreover, in the ORR Guide, health professionals wrote about abuse identify remedial measures to address 1.2.5, ORR delineates factors which may allegedly taking place in detention these allegations, including ORR’s indicate that a minor poses a risk of facilities. They also mentioned Monitoring Team, the Division of Health escape from ORR custody which it allegations of abuse occurring within for Unaccompanied Children and ORR’s considers in making an informed ORR custody such as in Southwest Key Prevention of Sexual Abuse placement decision, such as facilities in Arizona. An article in Coordinator. consideration whether the minor has an Reveal (Aura Bogado, Patrick Michels, Comment. Various commenters wrote immigration history that includes Vanessa Swales, and Edgar Walters, about the plight of Lesbian, Gay, failure to appear before DHS or the published June 20, 2018), detailed Bisexual, Transgender, Queer, Intersex, immigration courts. Notably, however, several allegations of abuse at shelters and Asexual (LGBTQIA) and per ORR policy, ‘‘ORR does not place a serving children in ORR custody, transgender and gender non-conforming child or youth in secure care solely including abuse allegations at Shiloh (TGNC) children in custody. For brevity because he or she may pose a risk of Treatment Center in Texas. These and because the vast majority of escape from ORR custody. However, commenters expressed concern that the commenters used the acronym LGBTQ, ORR may place a child in a staff secure new rule would allow for longer periods HHS will do likewise; note that we also facility solely because he or she poses of detention, which raises the risk of use the acronym LGBTQ consistent with a risk of escape.’’ Id. more abuse. ORR policy. Commenters expressed Comment. One advocacy organization Some commenters cited an concern that LGBTQ youths would be commented that proposed § 410.201(d) investigative report which they say mistreated and possibly abused if kept did not include children’s access to showed that the Federal Government in custody for an extended period of showers or bedding and it limited continues to place alien children in for- time and one commenter was concerned children’s access to medical care to only profit residential facilities where in particular that their due process emergencies. allegations of abuse have been raised rights might be infringed. One The commenter further expressed and where the facilities have been cited commenter noted that youth who are concern that even though a minor who for serious deficiencies. Allegations identified as lesbian, gay, bisexual, or is in ORR custody may have contact include failure to treat children’s ‘‘other’’ reported a rate of sexual with their family members who are not sickness and injuries; staff drunkenness; victimization by other youth in juvenile parents or legal guardians (for example, sexual assault; failure to check detention facilities at a rate of nearly siblings) with whom they traveled to the employees’ backgrounds; failure to seven times higher than straight youth. United States and were arrested, the provide appropriate clothing for Response. Even after publication of child should be permitted to be housed children; drugging; and deaths from this rule, the IFR will continue to in family detention with those relatives restraint. The commenters stated that require ORR care provider programs to consistent with their best interest. few companies lose grants from HHS assess and periodically reassess UACs Response. The language referenced by based on such allegations. for risk of sexual victimization and the commenter in proposed section Response. HHS agrees with the abuse according to certain minimum 410.201 derives directly from paragraph importance of immediately identifying criteria, including any gender 12 of the FSA, which pertains to and minimizing the risk that UACs nonconforming appearance or manner services provided at emergency or suffer abuse. The rule is consistent with or identification as lesbian, gay, influx facilities, as described at Exhibit HHS’ existing obligations to protect the bisexual, transgender, questioning, or 3. While State licensing standards do welfare of children. For example, the intersex and whether the UAC may

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therefore be vulnerable to sexual abuse Response. The proposed rule did not by definition a secure facility, such as or sexual harassment; and train staff on impact HHS’ policies or procedures for a State or county juvenile detention communicating effectively and placing UACs in foster care, where facility, is a more restrictive setting than professionally with LGBTQ UACs. UACs are placed in homes in the a shelter or a staff-secure facility. As Further, as mandated by law, ORR community, not in shelters or other ORR stated in the proposed definition of places each UAC in the least restrictive facilities. See ORR Policy Guide ‘‘secure facility’’ (see § 401.101) and as setting that is in the best interests of the Sections 1.2.1 and 1.2.6. But, shelter is consistent with paragraph 21 of the child. The rule is also consistent with, placements are state-licensed and fully FSA and the definition of ‘‘licensed and would not abrogate existing ORR consistent with the FSA, which the rule program’’ in that agreement, such policies protecting LGBTQ youth from implements. facilities do not need to meet the mistreatment and abuse. Per ORR Guide requirements of ‘‘licensed programs’’ as Changes to the Final Rule 1.2.1, when making a placement defined in § 401.101 under this subpart. determination or recommendation, ORR In response to public comments from As the proposed rule indicates ORR and care providers consider whether the multiple legal advocacy organizations only places a UAC in a secure facility child or youth identifies as lesbian, gay, that the FSA and TVPRA run in in limited, enumerated circumstances bisexual, transgender, questioning or contradiction to each other on the where the UAC has been charged with intersex, or is gender non-conforming in placing of UACs in secure facilities a crime or is chargeable with a crime, appearance or manner. Moreover, based solely on the lack of appropriate or when the UAC is similarly a danger section 3.5 of the ORR Guide articulates licensed program availability, ORR is to self or others. This will be read in guiding principles for the care of UACs striking the following clause from light of the other criteria in the who identify as LGBTQ: ‘‘are treated § 410.201(e): ‘‘. . . or a State or county regulations. In addition, the proposed with the same dignity and respect as juvenile detention facility.’’ rule is consistent with and does not other unaccompanied alien children’’; Placement of an Unaccompanied Alien abrogate ORR policies, under which the ‘‘receive recognition of sexual Child in a Licensed Program (45 CFR decision to place a UAC in a secure orientation and/or gender identity’’; 410.202) facility is then reviewed at least once ‘‘are not discriminated against or monthly (see ORR Policy Guide, Section harassed based on actual or perceived Summary of Proposed Rule 1.4.2) to make sure that a less restrictive sexual orientation or gender identity’’; Section 410.202 of the proposed rule setting is not more appropriate. and ‘‘are cared for in an inclusive and stated that ORR places a UAC into a The criteria for placement of UAC in respectful environment.’’ ORR care licensed program promptly after a UAC a secure facility are discussed in providers must ‘‘house LGBTQI youth is referred to ORR custody, except in accordance with section 410.203 of this according to an assessment of the certain enumerated circumstances. The part. youth’s gender identity and housing FSA also recognized that in some Comment. A commenter noted the preference, health and safety needs, and circumstances, a UAC may not be importance of age determination State and local licensing standards.’’ Id. placed in a licensed program. These because HHS only has jurisdiction over Section 3.5.5 of the ORR guide sets forth circumstances include emergencies or persons under 18 years of age. specific principles for housing LGBTQI an influx as defined in § 410.101 (in Response. HHS agrees with the children and youth in ORR care in a which case the UAC shall be placed in comment. Because HHS’ authority is manner that treats them fairly and a licensed program as expeditiously as only for individuals under 18, if a protects them from discrimination and possible); where the UAC meets the person is determined to be an adult, that abuse. Finally, Section 4 of the ORR criteria for placement in a secure person cannot be placed in HHS Guide offers further guidance for ORR facility; and as otherwise required by custody. Procedures for determining the care providers in how to prevent, detect, any court decree or court-approved age of an individual, and criteria for the and respond appropriately to sexual settlement. Like the DHS portion of the treatment of an individual who appears abuse and harassment, consistent with proposed rule, proposed § 410.202 did to be an adult are discussed at greater the IFR. not include the exception, which length in accordance with §§ 410.700 Comment. One commenter noted that appears at paragraph 12(A)(4) of the and 410.701 of subpart G. the proposed rule failed to require that FSA, that allows transfer within 5 days Changes to the Final Rule every child be placed in the least instead of 3 days in cases involving restrictive placement in the best transport from remote areas or where an HHS is not making any changes in the interests of the child, as required by the alien speaks an ‘‘unusual’’ language that final rule to proposed § 410.202 which TVPRA and subsequent HHS policies. requires the Government to locate an is consistent with the FSA and the Response. The proposed rule is interpreter. As noted above, DHS has TVPRA. However, HHS clarifies that it consistent with the TVPRA and UACs matured its operations such that these places UACs in licensed programs shall be held in the least restrictive factors no longer materially delay except if a reasonable person would setting appropriate to the UAC’s age and transfer. conclude ‘‘based on the totality of the special needs, provided that such Comment. Commenters stated that evidence and in accordance with setting is consistent with the need to unlike licensed shelter placements, subpart G’’ that the UAC is an adult. protect the minor or UAC’s well-being many of ORR’s more restrictive settings Criteria for Placing an Unaccompanied and that of others, as well as with any closely resemble prison. Children may Alien Child in a Secure Facility (45 CFR other laws, regulations, or legal be under constant surveillance, required 410.203) requirements. to wear facility uniforms, and have little Comment. One commenter believes control. These commenters stated that Summary of Proposed Rule that children should be placed as soon placement decisions have significant Section 410.203 of the proposed rule as possible in homes with family or consequences for UACs. set forth criteria for placing UACs in community members, not kept in Response. HHS recognizes that, as is secure facilities. HHS followed the FSA shelters or government care for long consistent with paragraph 21 of the FSA criteria, except that under the TVPRA, periods. and the TVPRA 8 U.S.C. 1232(c)(2)(A), ‘‘[a] child shall not be placed in a secure

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facility absent a determination that the normal functioning of the licensed this is the official closest to such child poses a danger to self or others or program in which the UAC is placed juvenile coordinator for ORR. (Note: has been charged with having such that transfer is necessary to ensure Although not covered in the proposed committed a criminal offense.’’ 8 U.S.C. the welfare of the UAC or others, as rule, ORR also recognizes that the 1232(c)(2)(A). With respect to these determined by the staff of the licensed TVPRA at 8 U.S.C. 1232(c)(2)(A) regulations, therefore, HHS did not program. delegates to the Secretary of HHS the include factor of being an escape risk, In addition, ORR proposed the requirement for prescribing procedures even though that was a permissible following as warranting placement in a governing agency review, on a monthly ground under the FSA for placement of secure facility, even though the FSA basis, of secure placements. ORR directs a UAC in a secure facility. does not specifically mention such readers to sections 1.4.2. and 1.4.7 of the In addition, HHS chose not to include criteria, if a UAC engages in ORR Policy Guide (available at: https:// in the proposed regulatory text the unacceptably disruptive behavior that www.acf.hhs.gov/orr/resource/children- specific examples of behavior or offense interferes with the normal functioning entering-the-united-states- that could result in the secure detention of a ‘‘staff secure’’ shelter, then the UAC unaccompanied) for these procedurals of a UAC under paragraph 21 of the may be transferred to secure facility. under the TVPRA.) FSA, because the examples are non- The FSA looks only to such disruptive Comment. Various organizations exhaustive and imprecise. For instance, behavior when it occurs in a ‘‘licensed’’ expressed concern that proposed examples listed in paragraph 21 of what facility—which under the strict terms of § 410.203(b) fails to provide that HHS may be considered non-violent, isolated the FSA does not include staff-secure will review all secure placements offenses (e.g., breaking and entering, facilities—even though all such monthly, as required by the TVPRA, and vandalism, or driving under the facilities are indeed state-licensed, and fails to specify how placements in staff influence) could be violent offenses in the vast majority of such facilities secure or residential treatment centers certain circumstances depending upon receive the same licenses as non-secure will be reviewed. Commenting the actions accompanying them. In shelters. Thus, under a strict organizations also stated that this addition, state law may classify these interpretation of the FSA, UACs could section fails to take into consideration offenses as violent. Including these be immediately transferred to a secure the best interest of the child. examples as part of codified regulatory facility for disruptive behavior in a non- Response. HHS intends for proposed text may inadvertently lead to confusion secure shelter, without first evaluating § 410.203(b) incorporates legal rather than clarity, and eliminate the the UAC in a staff secure setting, where requirements such as monthly review of ability to make case-by-case further disruption might lead a higher secure placements required by the determinations of the violence level of restriction in care. TVPRA; this is indicated by the associated with a particular act. The proposed rule would afford HHS provision’s statement that review of Under the proposed regulations, a the flexibility to first evaluate the UAC secure placements is performed UAC may be placed in a secure facility in a staff-secure setting, and then, if a ‘‘consistent with legal requirements.’’ In if ORR determines that the UAC has UAC is significantly disrupting the addition, the rule is consistent with and been charged with, is chargeable,39 or operations of a staff-secure facility, does not abrogate current ORR policies has been convicted of a crime; or is the transfer the UAC to protect the other and practices. Section 1.4.2 of the ORR subject of delinquency proceedings, has children who remain within the staff Policy Guide states that, at least every been adjudicated delinquent, or is secure facility. 30 days, the care provider staff, in In addition to the behaviors listed in chargeable with a delinquent act; and collaboration with the independent Case paragraph 21 of the FSA as where ORR assesses that the crimes or Coordinator and the ORR/Federal Field unacceptably disruptive—(e.g., drug or delinquent acts were not: Specialist (FFS), reviews the placement alcohol abuse, stealing, fighting, • Isolated offenses that (1) were not of UACs not only into secure facilities, intimidation of others, etc.).—HHS adds within a pattern or practice of criminal but also staff secure and RTC facilities to this list ‘‘displays sexual predatory activity and (2) did not involve violence in order to determine whether a new, behavior.’’ against a person, or the use or carrying less restrictive level of care is more In keeping with the July 30, 2018 of a weapon; or appropriate. ORR refers the reader to order in Flores v. Sessions, the proposed • Petty offenses, which are not Section 1.4.6 of the ORR Guide, which rule stated that placement in a secure considered grounds for a stricter means discusses RTC placements. Consistent RTC may not occur unless a licensed of detention in any case. with the TVPRA, see 8 U.S.C. • While in DHS or ORR’s custody or psychologist or psychiatrist determined 1232(c)(2)(A), ORR generally places while in the presence of an immigration that the UAC poses a risk of harm to self UACs in the least restrictive setting that officer, has committed, or has made or others. The proposed rule also stated is in the best interest of the child. See credible threats to commit, a violent or that ORR may place a UAC in a secure ORR Policy Guide, Section 1.2.1. malicious act (whether directed at facility if the UAC is ‘‘otherwise a Comment. One advocacy organization himself/herself or others). Note: Because danger to self or others,’’ which HHS stated that the provisions in the the FSA states that such acts would will read in light of the other criteria in proposed rule regarding when UACs can have occurred ‘‘while in INS custody’’ the FSA and is consistent with the plain be placed in secure facilities violates the or ‘‘in the presence of an INS officer,’’ language of the TVPRA. See 8 U.S.C. FSA because it allows HHS to place we proposed to evaluate such activities 1232(c)(2)(A). individuals in secure custody based on Section 410.203 also sets forth review in either DHS or HHS custody or in the ‘‘danger to self or others’’—a and approval of the decision to place a presence of an ‘‘immigration officer.’’ requirement not found in the FSA and UAC in a secure facility consistent with • Has engaged while in a licensed so vague as to compromise the the FSA. The FSA states that the program in conduct that has proven to government’s obligation to place UACs determination to place a minor in a be unacceptably disruptive of the in the least restrictive setting secure facility shall be reviewed and appropriate to their age and special 39 ‘‘Chargeable’’ means that ORR has probable approved by the ‘‘regional juvenile needs. cause to believe that the UAC has committed a coordinator.’’ The proposed rule used Response. HHS notes that this specified offense. the term ‘‘Federal Field Specialist,’’ as language of ‘‘danger to self or others’’ as

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permissible criteria for secure offense that could result in the secure the proposed rule regarding special placements of UACs comes directly detention of a UAC listed in paragraph needs minors in ORR care. from the TVPRA. See 8 U.S.C. 21 of the FSA, because the examples are Comment. Multiple organizations 1232(c)(2)(A). Additionally, as indicated non-exhaustive and imprecise. For noted that research shows the children in the proposed rule, the July 30, 2018 instance, examples listed in paragraph with disabilities in secure facilities may order in Flores v. Sessions mandated 21 of what may be considered non- not have their individual needs met. that placement of a UAC in a secure violent, isolated offenses (e.g., breaking One disability-rights organization RTC may not occur unless a licensed and entering, vandalism, or driving objected that Section 504 of the psychologist or psychiatrist determined under the influence) could be violent Rehabilitation Act of 1973 is not that the UAC poses a risk of harm to self offenses in certain circumstances addressed in the rule. or others. However, to respond directly depending upon the actions Response. ORR acknowledges and to the concern that this provision is accompanying them. In addition, state appreciates commenters’ feedback. The overly vague, HHS will add that nothing law may classify these offenses as proposed rule did not impact ORR in the provision abrogates requirements violent. Including these examples as assessments or services based on each to place UACs in the least restrictive part of codified regulatory text may individual UAC needs, including any setting appropriate to their age and inadvertently lead to confusion rather identified children with disabilities special needs. than clarity, and eliminate the ability to placed in any ORR facility, including Comment. Several organizations make case-by-case determinations of the secure facilities. ORR did not directly stated that the language in § 410.203 is violence associated with a particular address Section 504 of the too vague and gives HHS broad act. Finally, ORR notes that the Rehabilitation Act of 1973, because the discretion to place children in secure proposed rule does include a list of proposed rule did not impact ORR’s settings is contrary to the TVPRA and behaviors that may be considered assessments or services for disabled the FSA. A policy group stated, in unacceptably disruptive; HHS proposed children. ORR assessments and services particular, that the proposed regulation to add ‘‘displays sexual predatory for disabled UAC meet all requirements does not clearly identify specific behavior’’ to the non-exhaustive list of laid out in Section 504 of the behaviors or offenses that allow examples provided at paragraph 21 of Rehabilitation Act of 1973. placement of a UAC in a secure facility. the FSA, including drug or alcohol Comment. Another commenter stated And where explanation of placement is abuse, stealing, fighting, and that the rule does not provide adequate authorized, it is not clear enough for intimidation of others. notice or opportunity to be heard in the children to understand because it is a HHS discusses notification of secure event that a mental health professional broad and non-specific list, which is placement further under § 410.206— believes that a youth poses a risk of confusing for children and fails to put Information for UACs concerning the harm and must be moved into a more them on notice of the rules that may reasons for his or her placement in a restrictive setting. The commenter noted result in their being detained in a jail- secure or staff secure facility. ORR also that such notice and opportunity to be like setting. notes that all ORR programs have heard is necessary to safeguard against A couple of commenters discussed clinicians (see subpart D) that provide violations of section 504 of the alleged missing provisions or provisions mental health services for UAC Rehabilitation Act of 1973. that should have been included related regardless of program type. Response. HHS agrees that, in to the placement of children in Comment. Two commenters also add situations where an individual poses a restrictive settings. This included a that there is no consideration of risk of harm to self or others, it is in the proposal that HHS consider that in disability as part of ORR’s placement best interest of the individual, those determining threats from children who determinations, particularly for secure detained with the individual, as well as the agency sought placement in a secure facilities. the Federal employees overseeing the facility that those threats be ‘‘credible Response. ORR Federal Field individual, to ensure a mental health and verified’’ (as opposed to just Specialists review and approve all professional’s concerns are addressed credible threats as discussed in the placements of UACs in secure facilities reasonably and efficiently. HHS proposed rule). Further, the commenter consistent with legal requirements. This provided specifically for this scenario recommended removal of the term review includes consideration of any (for purposes stemming from a licensed ‘‘disruptive behavior’’ as criteria for disabilities identified as part of ORR’s psychologist or psychiatrist determining placement in a secure facility as the intake assessment process for every the individual poses a risk of harm to term is far too subjective. The UAC in care. self or others) in § 410.203(a)(4). commenter also stated that secure Comment. The commenter also found Moreover, as noted in § 410.203(b), ORR placements should include the it unacceptable to move a child from Field Specialists review and approve all consultation of a mental health ‘‘the least restrictive setting that is in the placements in this context consistent specialist. Another commenter stated best interest of the child’’ for behaviors with the relevant legal requirements that HHS provisions to provide related to his or her disability without (including all relevant Acts of placement in the ‘‘least restrictive attempting first to ameliorate the need Congress). setting’’ require more specificity. through the provisions of Similarly, that commenter derided the accommodations and individualized Changes to the Final Rule use of criteria not directly related to treatment. In response to public comments, HHS violence as justification for placement Response. ORR acknowledges and clarifies that it reviews placements of in a restrictive setting and objected that appreciates the commenter’s feedback. UACs in secure facilities on at least a there was no monthly review of these The proposed rule did not impact ORR’s monthly basis, and that, placements as required by 8 U.S.C. policies and procedures for ORR Federal notwithstanding its ability under the 1232(c)(1)(A). Field Specialists to review and approve rule to place UACs who are ‘‘otherwise Response. As explained in the all placement changes of UAC in ORR a danger to self or others’’ in secure proposed rule preamble, HHS chose not care, including UACs with disabilities. placements, this provision does not to include in the proposed regulatory (See ORR Policy Guide, Section 1.2.) abrogate any requirements that HHS text the specific examples of behavior or Please see § 410.208 for information on place UACs in the least restrictive

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setting appropriate to their age and any They argue that the proposed rule is ORR will only place a UAC in a secure special needs. designed to place more children in the facility if the UAC has been charged most restrictive setting, which is not in with or is chargeable with a crime, or Considerations When Determining the best interest of the child. One has been determined to pose a danger to Whether an Unaccompanied Alien commenter stated that that the proposed self or others. Notwithstanding Child Is an Escape Risk (45 CFR rule eliminates the requirement that all § 410.201(e) of the proposed rule, ORR 410.204) UACs be housed in the least restrictive does not place UAC in a secure facility Summary of Proposed Rule placement available. such as a State or county juvenile Section 410.204 of the proposed rule Response. HHS agrees that the FSA detention facility based on issues described the considerations ORR takes and current laws encourage the unrelated to the best interests of the into account when determining whether placement of children in the least child, such as licensed shelter a UAC is an escape risk. This part is restrictive setting and that the FSA availability. ORR does not consider consistent with how the term ‘‘escape encourages release to a parent or family emergency or influx facilities to be member. However, HHS disagrees that risk’’ is used in the FSA. Although the secure facilities. that the proposed rule is inconsistent TVPRA removes the factor of being an Comment. Several organizations with these goals. As the proposed rule escape risk as a ground upon which stated that the final rule should have a indicates, for the protection of all UACs ORR may place a UAC in a secure mechanism that allows a minor to in its care and custody, HHS only places facility, the factor of escape risk is still challenge their placement in a facility a UAC in a secure facility in limited, relevant to the evaluation of transfers and whether the facility complies with enumerated circumstances where the between ORR facilities under the FSA as FSA-required standards. UAC has been charged with a crime or being an escape risk might cause a UAC Response. HHS notes that nothing in is chargeable with a crime, or when the to be stepped up from a non-secure level the FSA contains the requirements UAC is a danger to self or others, which of care to a staff secure level of care commenters suggest with respect to an HHS reads in light of the other criteria administrative appeal process (other where there is a higher staff-UAC ratio in the FSA. When such placement and a secure perimeter at the facility. than the hearings of paragraph 24(A) in criteria is met, a secure facility is in fact the FSA). Nevertheless, pursuant to Notably, an escape risk differs from a the least restrictive setting that is in the ‘‘risk of flight,’’ which is a term of art proposed § 410.206, within a reasonable best interest of the child. Notably, ORR period of time, minors transferred or used in immigration law regarding an reviews the decision to place a UAC in alien’s risk of not appearing for his or placed in secure facilities are provided a secure facility, in accordance with the with a notice of the reasons for the her immigration proceedings. TVPRA, at least once monthly to make Comment. One organization noted placement in a language the UAC sure that a less restrictive setting is not understands. In addition, ORR policy that the TVPRA does not include escape more appropriate. See also ORR Policy risk as a factor for placement in a secure states that ‘‘After 30 days of placement Guide, Section 1.4.2. in a secure or RTC facility, UAC may facility and disagrees with section Comment. Several commenters request the ORR Director, or the 410.204 including this factor in contended that the proposed rule Director’s designee, to reconsider their placement decisions. violates the TVPRA because it inserts placement. The ORR Director, or Response. HHS acknowledges that the availability and appropriateness factors designee, may deny the request, remand TVPRA does not include escape risk as as part of the placement decision. In the request to the ORR/FFS for further a factor for placement in a secure 2008, Congress enacted a requirement consideration, or approve the request facility, and ORR does not propose to that children under HHS custody ‘‘shall and order the youth transferred to a staff consider escape risk when determining be promptly placed in the least whether to place UAC in a secure restrictive setting that is in the best secure or other care provider facility.’’ facility. As specified in proposed rule interest of the child.’’ 8 U.S.C. See ORR Guide, Section 1.4.7. § 410.203, ORR will only place a UAC 1232(c)(2)(A). In making such Moreover, subpart H of this rule in a secure facility if the UAC has been placements, ‘‘the [HHS] Secretary may provides UAC with the opportunity to charged with or is chargeable with a consider danger to self, danger to the have an independent hearing officer crime, or has been determined to pose community, and risk of flight.’’ Id. But review ORR’s decision as to whether the a danger to self or others. ‘‘[a] child shall not be placed in a secure UAC presents a danger to self or others, or is a risk of flight. Changes to the Final Rule facility absent a determination that the child poses a danger to self or others or Changes to the Final Rule HHS is not making any changes to has been charged with having proposed § 410.204 in the final rule. committed a criminal offense.’’ Id. HHS is not making any changes in the These commenters argued that 8 U.S.C. final rule to proposed § 410.205 which Applicability of § 410.203 for Placement is consistent with the FSA and the in a Secure Facility (45 CFR 410.205) 1232(c)(2)(A) accordingly prohibits secure placement based on issues TVPRA. Summary of Proposed Rule unrelated to the best interests of the Information for Unaccompanied Alien Section 410.205 of the proposed rule child, such as licensed shelter Children Concerning the Reasons for provided that ORR does not place a availability. His or Her Placement in a Secure or UAC in a secure facility pursuant to Response. Consistent with the Staff Secure Facility (45 CFR 410.206) § 410.203 if less restrictive alternatives, TVPRA, 8 U.S.C. 1232(c)(2)(A), under Summary of Proposed Rule such as a staff secure facility or another the proposed rule, ‘‘ORR places each licensed program, are available and UAC in the least restrictive setting that Section 410.206 of the proposed rule appropriate in the circumstances. is in the best interest of the child and specified that, within a reasonable Comment. Several organizations appropriate to the UAC’s age and period of time, ORR must provide each argued the FSA and current laws special needs, provided that such UAC placed in or transferred to a secure encourage the placement of children in setting is consistent with its interests to or staff secure facility with a notice of the least restrictive setting and favor ensure the UAC’s timely appearance the reasons for the placement in a release to a parent or family member. before DHS and the immigration court.’’ language the UAC understands.

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Comment. A policy group stated that ORR’s Notice of Restrictive Placement Guide Section 1.4.2). HHS declines to the proposed regulation does not clearly form, which is provided to UACs. adopt the standards suggested by the identify specific behaviors or offenses Included in the notice is information on commenter because the rule implements that allow placement of a UAC in a the UAC’s right to seek judicial review and codifies both the FSA and other secure facility. Further, the commenter in a Federal District Court with existing practices under the HSA and stated that the notice of restrictive jurisdiction and venue. Immediately TVPRA. placement it is not clear enough for upon placement in a secure facility, staff Comment. Several commenters also children to understand because it is a secure facility, or RTC, a UAC may ask expressed concern that the proposed broad and non-specific list, which is a lawyer to assist him or her in filing a rule § 410.206 weakened notice confusing for children and fails to put lawsuit in a Federal District Court, if he requirements for children placed in them on notice of the rules that may or she believes they have been treated secure program. result in their being detained in a jail- improperly and/or inappropriately Response. The proposed rule did not like setting. placed in a restrictive setting. A judge impact the notice requirements for Response. As explained in the will decide whether or not to review the children placed in secure programs. proposed rule preamble, HHS chose not UAC’s case to determine whether the (See ORR Policy Guide Section 1.4.2) to include in the proposed regulatory UAC should remain in a restrictive text (see proposed rule, § 410.203) the setting. Requests for reconsideration of Changes to Final Rule specific examples of behavior or offense placement in a restrictive facility is a HHS is not making any changes in the that could result in the secure detention separate process and a separate final rule to proposed § 410.206 which of a UAC in paragraph 21 of the FSA determination from the 810 hearings, is consistent with the FSA. because the examples are non- which determine whether a UAC is a Custody of an Unaccompanied Alien exhaustive and imprecise. ORR notes, danger to the community or flight risk Child Placed Pursuant to This Subpart however, that in addition to standard if released from ORR custody. check boxes to indicate reasons why a Consistent with the Ninth Circuit (45 CFR 410.207) UAC is being placed in a secure, RTC, Court of Appeals decision in Flores v. Summary of Proposed Rule or staff-secure facility, ORR’s Notice of Sessions and paragraph 24A of the FSA, Section 410.207 of the proposed rule Placement in a Restrictive Setting as is UACs also have the opportunity to seek specified who has custody of a UAC required by proposed rule, § 410.206, a bond hearing with an immigration under subpart B of these rules. The provides a space for a narrative to be judge. This rule, at § 410.810, creations proposed regulation specified that upon included which explains in greater of an independent hearing officer release to an approved sponsor, a UAC detail why a particular restrictive setting process (‘‘810 hearings’’) which would is no longer in the custody of ORR. ORR is being recommended for a given UAC. provide substantially the same would continue to have ongoing The ORR form also specifically ‘‘practical benefits’’ as a bond hearing monitoring responsibilities under the encourages a UAC to seek out assistance under the FSA, as described by the HSA and TVPRA, but would not be the from his or her case manager at the ORR Ninth Circuit. In a bond hearing, an legal or physical custodian. See, e.g., 6 care provider facility, attorney, or legal immigration judge decides whether the U.S.C. 279(b)(1)(L); 8 U.S.C. service provider, if the UAC has have child poses a danger to the community. 1232(c)(3)(B). This interpretation any questions about his or her Similarly, an independent hearing accords with ORR’s longstanding placement, or their right to challenge it. officer within HHS would decide on the position, as well as provisions of the Comment. One commenter stated that same question in an 810 hearing under FSA (see e.g., paragraphs 15 through 17, the rule does not provide adequate this rule. ORR would take such a notice or opportunity to be heard in the decision into account when determining discussing ‘‘release’’ from custody). Comment. No public comments were event that a mental health professional a UAC’s continued placement while in believes that a youth poses a risk of care. submitted concerning this section of the harm and must be moved into a more HHS notes that further information proposed rule. restrictive setting. The commenter about the placement of special needs Changes to the Final Rule stated that such notice and opportunity minors in ORR care is found in the HHS is not making any changes to the to be heard is necessary to safeguard discussion regarding proposed rule, against violations of section 504 of the § 410.208. proposed rule. Rehabilitation Act of 1973. Comment. A commenter noted that Special Needs Minors (45 CFR 410.208) Response. HHS only places a UAC in there was no provision in the proposed an RTC if the youth is determined to be rule for a periodic reassessment of a Summary of Proposed Rule a danger to self or others by a licensed minor’s placement at least every 30 In the proposed rule, ORR described psychologist or psychiatrist. See ORR days, as the commenter contends is ORR’s policy regarding placement of a Policy Guide, Section 1.4.6. UACs have required under 8 U.S.C. 1232(c)(2)(A), special needs minor. ORR also noted an opportunity to challenge such a or for independent review of a that an RTC may be considered a secure placement in an RTC. Per ORR policy placement decision that satisfies due level of care and is discussed in (see ORR Guide, Section 1.4.7): ‘‘After process requirements. The commenter proposed § 410.203. 30 days of placement in a secure or RTC recommended the adoption of standards Comment. Several comments facility, UAC may request the ORR it developed for providing both of these submitted concerned the standards for Director, or the Director’s designee, protections, which the commenter ORR’s care of children with disabilities. reconsider their placement. The ORR believes are necessary to ensure secure Two advocacy groups commented that Director, or designee, may deny the placements are limited to extreme the proposed regulations do not contain request, remand the request to the ORR/ circumstances only. enough guidance regarding the FFS for further consideration, or Response. The proposed rule did not consideration of a child’s disability as approve the request and order the youth impact ORR’s policies and procedures part of a placement determination, and transferred to a staff secure or other care for the 30 day restrictive placement the provision which requires a provider facility.’’ The right to such review, for all UACs placed in secure, psychologist or psychiatrist to administrative review is set forth on staff secure, and RTCs. (See ORR Policy determine whether a child is a danger

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to themselves or others, is insufficient to immediate intervention, as well as compared ‘‘tent cities’’ to Japanese and protect children with disabilities. develop an individualized educational German internment camps. Multiple legal and advocacy assessment and plan for each minor. The commenters highlighted the organizations noted that research shows ORR care providers must provide facility’s exemption from state oversight that children with disabilities placed in educational services appropriate to the and licensing requirements and secure facilities may not have their UAC’s level of development, literacy described cramped detention conditions individual needs met. One of these level, and linguistic or communication existing there. Several commenters commenters stated that the proposed skills in a structured classroom setting, argued that placement of UACs in such rule should take into account studies which concentrate mainly on the facilities would be contrary to the suggesting youth with disabilities who development of basic academic TVPRA and the HSA, and undermine are placed in secure facilities are at high competencies and secondarily on the FSA. risk of unmet health needs, fail to English Language Training (ELT). Response. The FSA contemplates receive appropriate accommodations for Further guidance regarding academic scenarios when the U.S. government’s their disabilities, and are subject to educational services provided to UAC is ability to place every UAC in a licensed harmful conditions, including the use of included in ORR Guide, section 3.3.5, facility is not possible during an restraints and solitary confinement. which again is consistent with and not emergency or influx. The HSA and the Another organization asserted that the abrogated by the rule. Care providers TVPRA do not prohibit the use of proposed rule contains inadequate adapt or modify local educational unlicensed facilities in some standards to address the needs of standards to develop curricula and circumstances. The proposed rule children with disabilities and fails to assessments, which must reflect cultural defines those circumstances in guarantee special education for children diversity and sensitivity. Remedial § 410.101—Definitions. with disabilities, in conflict with the education and after school tutoring is When there is a sharp increase, or U.S. Supreme Court case Plyler v. Doe, provided as needed. Academic reports ‘‘influx,’’ in the number of UACs 457 U.S. 202 (1982), and the Individuals and progress notes are included and entering the United States and Federal agencies are unable to transfer them into with Disabilities Education Act. updated in the UAC’s case file. Another commenter, a disability-rights state-licensed, ORR-funded care organization noted that Section 504 of Changes to the Final Rule provider facilities in a timely manner, the Rehabilitation Act of 1973 is not HHS is not making any changes to HHS may place certain UACs at influx addressed in the rule. proposed § 410.208 in the final rule, care facilities. HHS has detailed policies Several organizations commented that which adopts the special needs for when children can be sheltered at a education and special needs plans for provision as found in the FSA, temporary influx care facility. The UACs in ORR care are vague and that paragraph 7. minor must be a youth between 13 and educational assessment needs to be 17 years of age; have no known special defined. In addition, the organizations Procedures During an Emergency or medical or behavioral health conditions; contended that the proposed rule needs Influx (45 CFR 410.209) have no accompanying siblings age 12 to be more specific regarding how Summary of Proposed Rule years or younger; and be able to be children’s individualized educational discharged to a sponsor quickly—among needs will be met. Section 410.209 describes the other considerations. (See ORR Policy Response. Under the rule, ORR will procedures ORR follows during an Guide: Children Entering the United individually assess each UAC to emergency or influx. The FSA defines States Unaccompanied, Section 1.3.5). determine whether the UAC has special ‘‘emergency’’ and ‘‘influx.’’ Consistent HHS is the primary regulator of needs and place the UAC in the least with the FSA, the proposed rule states temporary influx care facilities and is restrictive setting appropriate to the that UACs should be placed in a responsible for their oversight, UAC’s age and individual special needs. licensed program as ‘‘expeditiously as operations, physical plant conditions, The proposed language also requires possible.’’ and service provision. While states do ORR, whenever possible, to place a UAC HHS proposed a written plan not license or monitor influx care with disabilities in licensed programs describing the reasonable efforts it will facilities, they operate in accordance where children without special needs take to place all UACs as expeditiously with applicable provisions of the FSA, are placed but that can provide the as possible into a licensed shelter when HSA, TVPRA, interim Final Rule on services and treatment needed to there is an influx or emergency Standards to Prevent, Detect, and accommodate such special needs. UACs consistent with proposed § 410.209. Respond to Sexual Abuse and Sexual are placed in more restrictive settings, Comment. HHS received several Harassment Involving Unaccompanied such as a RTC, only if the facility is the comments on the use of influx facilities Alien Children, and ORR policy and least restrictive placement available that when there are not enough beds at procedures, and contract requirements. meets the needs of the UAC as required licensed facilities during an emergency HHS monitors temporary influx care by the TVPRA. See 8 U.S.C. or influx. Many individuals wrote that facilities through assigned Project 1232(c)(2)(A). Moreover, consistent with UACs should not be detained in Officers, Federal Field Specialists, the July 30, 2018 Order in Flores v. unlicensed or non-state licensed ‘‘tent Program Monitors, and an Abuse Sessions, § 410.203 states that cities,’’ but instead should be treated Review Team, and all have the authority ‘‘placement in a secure RTC may not with respect and dignity. to issue corrective actions if needed to occur unless a licensed psychologist or Commenters were concerned with ensure the safety and wellbeing of all psychiatrist determines that the UAC ORR’s use of unlicensed soft-sided children in HHS’ care. poses a risk of harm to self or others.’’ structures to house UACs during an HHS choses locations for temporary All UACs in ORR custody are influx, referring to them as ‘‘tent cities.’’ influx care facilities based on a number provided access to educational services Commenters were concerned about the of factors relevant to child welfare, while in care. Under § 410.402, all location of the Tornillo Influx Care which included size, types of housing licensed programs must identify a Facility, especially the distance from El structures, and time considerations. UAC’s special needs, including any Paso, available services, and HHS assesses possible influx sites for specific problems that appear to require accommodations. Another commenter suitability to temporarily house UACs.

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HHS also seeks to limit the use of soft- relationship with the UAC. The list of and procedures that interpret ORR’s sided temporary influx structures except approved sponsors follows the order of authorities and require that the as a last resort to prevent UACs from preference set out in the FSA. decision-making process and release lengthy stays in U.S. Border Patrol Comment. A few commenters recommendations be made in a timely stations or to address any other disagreed with HHS’ proposed language manner. emergent issues that could cause a under § 410.301, which they believed Comment. A commenter who is a temporary inability to use one of our afforded ORR broad authority to deny former director of ORR stated that regular shelters. family reunification and raises serious HHS strives to provide a quality of due process concerns. For instance, the during his tenure at ORR, the agency care at temporary influx care facilities commenters pointed out that § 410.301 interpreted (and implemented) the that is parallel to our state-licensed permits ORR to deny reunification on TVPRA mandate of placing UACs in the programs. Children in these facilities the basis that the child’s sponsor will ‘‘least restrictive setting’’ to require that can participate in recreational activities not secure the child’s appearance before children be released from congregate and religious services appropriate to the DHS or the Immigration Courts, which care to parents, other family members, child’s faith, and receive case they believe improper. They also raised or other responsible adults (‘‘sponsors’’) management, on-site education, medical concerns that the proposed rule does as promptly as possible. The commenter care, legal services, and counseling. not establish any process by which the further stated that sponsors’ requests for HHS’ goal is to place as many UACs child is protected from an erroneous reunification were denied only in as possible into permanent state- decision by being provided a notice of narrow circumstances where reuniting a licensed facilities or transitional foster such a determination; presented with child with the sponsor would not be in care while their sponsorship suitability evidence supporting ORR’s the child’s best interest. He also determinations or immigration cases are determination; or given an opportunity objected to the Director-level review and adjudicated (in the event there is no to contest such a determination and to approval policy of the current present their own evidence in sponsor available). Administration as needlessly delaying opposition to ORR’s determination. Changes to the Final Rule Two commenters highlighted that the the release of children from ORR process also lacks a delineated timeline custody, putting children at risk of HHS is not making any changes in the considerable harm, and violating the final rule to proposed § 410.209. for decision-making or release. Multiple organizations argued that reuniting TVPRA. The commenter said that in 45 CFR Part 410, Subpart C, Releasing children with their families as quickly circumstances where even short delays an Unaccompanied Alien Child From as possible is in the child’s best interest. can have serious implications for child ORR Custody These organizations noted that it is in well-being, the delays that necessarily This subpart covers the policies and recognition of this interest that the FSA accompany this new layer of review procedures used to release, without requires ORR to make ‘‘prompt and pose a serious risk of harm. He also unnecessary delay, a UAC from ORR continuous efforts’’ towards family asserted that the Director-level review custody to an approved sponsor. reunifications and to release children for dangerousness of the entire category from immigration related custody of children previously in staff-secure or 45 CFR 410.300—Release a UAC From ‘‘without unnecessary delay.’’ secure placements serves no ORR Custody to an Approved Sponsor Response. As stated above, the conceivable purpose and was put into Summary of Proposed Rule purpose of this rulemaking is to place in a manner contrary to any implement the provisions of the FSA. notion of responsible agency In the proposed rule, HHS described ORR derived language on denying UAC administration and management. the policies and procedures used to release verbatim from paragraph 14 of release a UAC from ORR custody to an the FSA, which in itself was intended Response. HHS notes that the approved sponsor. to address and fully settle Constitutional language regarding denying release of a Comment. HHS did not receive any concerns, including due process issues, minor derives from paragraph 14 of the comments on this section. on behalf of the full class of UACs in FSA, and does not specify a regulatory Changes to Final Rule INS legal custody, now HHS legal requirement for a Director-level review. custody. The FSA did not include any Likewise, ORR’s current release policy, HHS adopts the standard in the provisions for the process urged by see ORR Policy Guide, section 2.7, does proposed rule. commenters. Similarly, the TVPRA— not include such a mandate for Director- 45 CFR 410.301—Sponsors to Whom which includes Congress’ detailed level review. Additionally, ORR has an ORR Releases an Unaccompanied Alien protections for UACs in the legal appeals process for when sponsorship is Child custody of HHS—did not include the denied in ORR Policy Guide, section process for challenging reunification Summary of Proposed Rule 2.7.7. This rule does not affect the urged by some commenters. ORR appeals process for denying In the NPRM, HHS proposed that it nevertheless notes that the various sponsorship. would release a UAC to a sponsor protections specified by commenters are without unnecessary delay when ORR addressed by ORR’s existing policies Changes to Final Rule determines that continued custody of (see ORR Policy Guide, section 2.7). the UAC is not required to either secure Additionally, ORR notes that each case While recognizing that ORR policy the UAC’s timely appearance before is unique and release decisions, by includes some of the process urged by DHS or the Immigration Courts or to necessity, must be based on multiple commenters, the purpose of this final ensure the UAC’s safety or the safety of factors, some of which are outside the rule is to implement provisions of the others. HHS also listed individuals (and agency’s control (e.g., the time it takes FSA. HHS accordingly is not deviating entities) to whom ORR releases a UAC. for a sponsor to complete a sponsor from the language of the proposed rule. HHS refers to the individuals and application). ORR addresses timelines The rule adopts the substantive terms of entities in this list as ‘’’approved for its decision-making process and the corresponding release provisions of sponsors,’’ regardless of their specific release recommendations in policies the FSA, paragraph 14.

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45 CFR 410.302—Sponsor Suitability as well, while a sponsor may be a release. It is not necessary to include the Assessment Process Requirements biological parent, the child arrived policy on post-release services being in Leading to Release of an unaccompanied, and may not have lived place, discussed above, explicitly in the Unaccompanied Alien Child From ORR with the parent for much or a significant regulation text, as the requirement for Custody to a Sponsor portion of his or her childhood, so release without ‘‘unnecessary delay’’ is Summary of Proposed Rule background checks remain important for already included in the substantive rule, safety reasons. Such background checks and this process is an interpretation of In the proposed rule, HHS outlined of all potential sponsors and household that requirement. Current policies are the process requirements leading to members are consistent with various set forth in the ORR Policy Guide release of a UAC from ORR custody to state child welfare provisions. For available at https://www.acf.hhs.gov/ a sponsor (also referred to as a example, all states require background orr/resource/children- entering-the- ‘‘custodian’’). The FSA at paragraph 17 checks for prospective foster care and united-states-unaccompanied at: allows ORR the discretion to require a adoptive parents, and kinship caregivers Sections 2.4 through 2.7. suitability assessment prior to release, typically must meet most of these same Comment. Some organizations and the TVPRA provides that ORR may requirements. See ‘‘Background Checks disagreed with HHS’ proposed language not release a UAC to a potential sponsor for Prospective Foster, Adoptive, and under § 410.302 because they thought it unless ORR makes a determination that Kinship Caregivers,’’ available at: lacked accountability and oversight for the proposed custodian is ‘‘capable of https://www.childwelfare.gov/pubPDFs/ ORR and establishes discretionary providing for the child’s physical and background.pdf#page=2&view=Who factors ripe for discriminatory mental well-being. Such determination Aug. 4, 2018). As of the time of the application. The commenters noted that shall, at a minimum, include publication of the report, in 48 states, all § 410.302(a) fails to establish any verification of the custodian’s identity adults residing in the home also were timeline requirements or requirements and relationship to the child, if any, as subject to background checks. A well as an independent finding that the for prompt release. One commenter criminal records check for adult noted that HHS lacked requirements to individual has not engaged in any sponsors and other household members activity that would indicate a potential make continuous efforts at release, and will check the individual’s name in referenced agency practice as opposed risk to the child.’’ 8 U.S.C. State, local or Federal law enforcement 1232(c)(3)(A). As such, the proposed to statutory and Flores requirements. agencies’ records, including databases of Response. HHS wishes to reiterate rule requires a background check, records for any history of criminal including at least a verification of that this final rule is intended to convictions. Moreover, nearly all states implement the terms of the FSA (and identity for potential sponsors in all require a check of national criminal circumstances. In accordance with the the TVPRA and HSA to the extent such records. See also 42 U.S.C. 671(a)(20) statutes directly affect FSA provisions). FSA, under the proposed rule, (providing that states receiving Federal It is not designed to address litigation suitability assessments can include an funding for foster care and adoption related to children separated from their investigation of the living conditions in assistance provide ‘‘procedures for parents. HHS disagrees with which the UAC would be placed; the criminal records checks, including commenters who indicated that the standard of care he or she would fingerprint-based checks of national agency did not follow statutory or FSA receive; interviews of household crime information databases (as defined requirements; the language in § 410.302 members; a home visit if necessary; and, in section 534(e)(3)(A) 1 of title 28), for is verbatim of language in paragraph 18 follow-up visits after the child’s release any prospective foster or adoptive of the FSA that the licensed program from care. Furthermore, where the parent before the foster or adoptive ‘‘shall make and record the prompt and TVPRA requires a home study, as parent may be finally approved for continuous efforts on its part toward specified in 8 U.S.C. 1232(c)(3)(B), the placement of a child.’’). proposed regulations acknowledge such In § 410.302(e), HHS ORR proposed a family reunification and the release of requirement. The FSA says that the list of conditions and principles of the minor.’’ Issues of timeline proposed sponsor must agree to the release. ORR also invited public requirements are not included in the conditions of release by signing a comment on whether to set forth in the FSA. With respect to separated children, custodial affidavit (Form I–134) and final rule ORR’s general policies HHS notes that this rule is intended to release agreement. However, the Form concerning the following: implement the FSA, and it is beyond the I–134 is a DHS form, and ORR does not 1. Requirements for home studies (see scope of this rulemaking to incorporate use this form. Therefore, the proposed 8 U.S.C. 1232(c)(3)(B) for statutory any requirements stemming from rule would have the sponsor sign an requirements for a home study); ongoing litigation. Such requirements affirmation agreeing to abide by the 2. Denial of release to a prospective govern how a Federal agency interacts sponsor care agreement, which is the sponsor, criteria for such denial, and with, monitors, and oversees its grantees agreement and accompanying form ORR appeal; and and contractors and are more has used so that the sponsor 3. Post-release services requirements. appropriately discussed and defined in acknowledges his or her Note: In accordance with the Flores v. ORR policy while this rule focuses responsibilities. Sessions July 30, 2018 court order, ORR exclusively on codifying the FSA. Further, consistent with the FSA and stated in the preamble that it will not Comment. Organizations and the TVPRA, ORR’s suitability have a blanket policy of requiring post commenters raised concerns that assessment includes biographic release services to be scheduled prior to § 410.302(b) may lead to discrimination background checks (such as public release—for those UACs who required a on account of economic status due to records checks and sex offender registry home study—but will evaluate such the lack of specificity in describing what checks) of potential sponsors, including situations on case-by-case basis, based standard of care is satisfactory for biological parents, and household on the particularized needs of the UAC reunification, and what living members, as well as fingerprinting only as well as the evaluation of the sponsor, conditions would raise concerns. They as is needed to ensure that release of a and whether the suitability of the argue that poverty alone should not UAC to prospective sponsors is safe. Of sponsor may depend upon having post prevent a child’s release from note is that, in many, if not most cases, release services in place prior to any government custody.

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Response. HHS disagrees with the vulnerable.40 The agency is required to argued that the proposed rule fails to commenter’s characterization of this balance timely releases with ensuring justify why additional steps are requirement. Paragraph 17 of the FSA the safety of UACs, including that they necessary to assess sponsor suitability. states specifically that the suitability are not released to traffickers or others To support the assertion that pre-MOA assessment may include: ‘‘verification of who would abuse or exploit them. suitability assessment policies were identity and employment of the Further, HHS notes section 224(a) of sufficient, the commenters referenced individuals offering support.’’ ORR DHS’s current fiscal year 2019 three reports published by the notes that the employment check is only Appropriations Act 41 bars DHS, except Government Accountability Office one factor among many in the suitability in certain limited circumstances, from (dated 4/26/2018, 2/5/2016, and 7/14/ assessment to ensure that the potential taking certain enforcement actions 2015) recommending improvements to placement is in the child’s best interest. ‘‘against a sponsor, potential sponsor, or HHS’ care of UACs and pointed out that Poverty, alone, will not prevent a UAC’s member of a household of a sponsor or none of the reports made release, but the TVPRA prohibits HHS potential sponsor of an unaccompanied recommendations calling for from releasing a UAC unless it alien child [‘UAC’] . . . based on enhancements to HHS’ sponsor determines that a potential sponsor is information shared by [HHS].’’ 42 suitability assessments. One commenter ‘‘capable’’ of caring for the minor’s ORR notifies sponsors following its also referenced a report written by the ‘‘physical and mental well-being.’’ Part policies and procedures on the home Senate Permanent Subcommittee on of such analysis requires determining study process. Investigations (dated 8/15/2018) that Lastly, with regard to obtaining the sponsor’s means to do so, which focused on procedures for distant information through the Central Index may include employment. relatives or non-relatives but made no Comment. Many commenters believed System, HHS notes that this system is recommendations for procedures for that § 410.302(c) allows ORR to actually maintained by the U.S. parental or close relative sponsors. The unnecessarily and inappropriately Citizenship and Immigration Service, an commenters pointed out that neither the require a further suitability assessment agency within DHS. TVPRA or the FSA require HHS to and delay a child’s placement with a Comment. Commenters also referred collect immigration status information sponsor. Several organizations argued to the expanded suitability assessments, on sponsors or other adult members of that information obtained by ORR as described in § 410.302(c) and in the the household. They argued that the during the suitability assessment of a Memorandum of Agreement (MOA) expanded collection and sharing of sponsor should not be shared with DHS between ORR, ICE, and CBP concerning for immigration enforcement purposes. information sharing (see ORR–ICE–CBP information about potential sponsors’ In addition, some organizations said Memorandum of Agreement Security immigration status serves no legitimate that sponsors should receive notice of Regarding Consultation and Information purpose in that, per the ORR Policy the additional requirements and an Sharing in Unaccompanied Alien Guide, immigration status is not used to opportunity to contest their necessity or Children Matters (Apr. 13, 2018)), as disqualify a potential sponsor. They also to satisfy concerns in an alternate unnecessary, likely to deter potential mentioned that there are alternative manner. One commenter suggested HHS sponsors from coming forward, and methods to obtain immigration status could get the information it needs violative of DHS’s own privacy policy information that does not involve ICE, through its own Central Index System or and the privacy rights of potential such as USCIS’s Central Index System the Executive Office for Immigration sponsors. One commenter stated that or the Executive Office for Immigration Review Hotline, which provides HHS and DHS have never convincingly Review Hotline. The commenters immigration hearing information. The articulated why immigration status posited that the practice of using commenter argued that the procedures determinations merit the privacy risk to information collected under the MOA in the proposed rule are contrary to parents and relatives. Several for immigration enforcement purposes children’s best interests, which the law commenters believed that HHS’ pre- deters and/or delays family requires HHS to prioritize. MOA suitability assessments were reunification because potential Response. The FSA does not include sufficiently robust without expanding sponsors, many of whom are in the provisions for sponsors contesting the data collection and exchange and United States without legal immigration necessity of additional conditions. status, fear coming forward to sponsor Instead, paragraph 17 of the FSA 40 See https://www.childwelfare.gov/topics/ children. The commenters also outofhome/foster-care/fam-foster/foster-care-home- theorized that individuals who are provides the discretion for the agency to _ studies/#sl examples for discussion of home lawfully present, including U.S. conduct a suitability assessment prior to studies in foster care. The interstate compact on the release. Such suitability assessment may placement of children (ICPC) state pages also allows citizens, may also be deterred from include interviews of household a comparison of individual states with respect to sponsoring UAC in order to avoid members and may require home visits. requirements for foster care. The Texas state page interacting with ICE or exposing others shows that the state requires a home study even In addition, ORR adheres to the TVPRA, when a relative will be caring for a foster child. living with or near them who lack legal which states that, ‘‘[b]efore placing the http://icpcstatepages.org/texas/relativestudies/. The immigration status to potential child with an individual, the Secretary page for California shows that relative caregivers immigration enforcement. One of Health and Human Services shall must be licensed, must receive a home study, must commenter highlighted that further receive a criminal records check, must receive a determine whether a home study is first child abuse and neglect check, and that the wait complications can arise when a necessary.’’ 8 U.S.C. 1232(c)(3)(B). ORR time is ‘‘3–6 Months’’ for ‘‘Complete applications household member refuses to undergo a policies similarly allow the Office to use for licensure and/or approval that do not have background check. The commenter its discretion to provide home studies complications,’’ and that ‘‘This process may take explained that sponsors may be forced longer based on delays resulting from criminal when it is in the best interest of the background checks, exceptions and waivers, and to choose between leaving their home child, see ORR Policy Guide, section need for corrections to foster family homes.’’ http:// and leaving their child or loved one in 2.4. Home studies—a common practice icpcstatepages.org/california/relativestudies/. Federal custody. The commenters in State foster care systems—ensure that 41 Consolidated Appropriations Act 2019, Public suggested that HHS restrict access and a home is investigated, especially in Law 116–6, section 224, 133 Stat. 13. use of data only to the vetting of 42 CONSOLIDATED APPROPRIATIONS ACT, cases where there is concern about the 2019, Public Law 116–6, February 15, 2019, 133 potential sponsors. The commenters sponsor, or the UAC is especially Stat 13. stated repurposing the data will

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contribute to the fear that interacting assessments had on its mission of safe proposed sponsor, ORR does use the with any government agency will bring and timely release of UACs. This proposed sponsor’s immigration status about an enforcement action. included evaluation of whether the to determine whether a sponsor care Response. Consistent with the FSA expanded biometric background checks, plan is necessary in the event the and TVPRA, the proposed rule would as described in the ORR–ICE–CBP sponsor is required to leave the United codify the FSA standard to release Information Sharing Memorandum of States. UACs to sponsors promptly and without Agreement (Apr. 2018), yielded new Additionally, HHS notes section unnecessary delay. HHS disagrees with information that enabled ORR to 224(a) of DHS’s fiscal year 2019 the commenters’ assertion that identify child welfare risks that the appropriations bars DHS from taking additional information, such as office would not have found under the certain enforcement actions ‘‘against a information about a sponsor’s prior policy, as well as whether a sponsor, potential sponsor, or member immigration status, or fingerprinting in correlation existed between the of a household of a sponsor or potential certain cases, is unnecessary. The expanded biometric background checks sponsor of an unaccompanied alien TVPRA requires HHS to conduct a and UAC length of care in ORR custody child [‘UAC’] . . . based on information suitability assessment and is clear that (‘‘length of care’’ refers to the total time shared by’’ HHS. Per the June 10, 2019 the standards it requires (verification of that a UAC is under ORR care and Operational Directive, case managers the custodian’s identity and relationship custody; whereas ‘‘length of stay’’ refers working with ORR grantee care to the child, if any, as well as a to a UAC’s placement at one specific providers are to share this information determination that a proposed sponsor care provider facility and does not with persons subject to fingerprint is ‘‘capable of providing for the child’s account for time a UAC may have been background checks. physical and mental well-being,’’ placed at another care provider facility). Comment. Another commenter urged including an ‘‘independent finding that ORR then issued a series of four HHS to resist cooperating with DHS the individual has not engaged in any operational directives (one in December enforcement activities relating to activity that would indicate a potential 2018, one in March 2019, and two in sponsors, citing several immigration risk to the child’’) are the minimum June 2019) that modified the suitability related contexts in which access to data standards required. The TVPRA also assessment process to achieve an has been limited to further a greater sets forth a general principle that HHS appropriate balance between safety and societal need. This commenter shared ‘‘establish policies and programs to timeliness under the operating that numerous police departments resist ensure that unaccompanied alien conditions faced by ORR. working with or sharing information children in the United States are Under the operational directives, ORR with immigration enforcement entities protected from traffickers and other completes individualized suitability because doing so has demonstrably persons seeking to victimize or assessments of sponsors without limited their ability to respond to crime; otherwise engage such children in obtaining fingerprints from all that individuals who applied for criminal, harmful, or exploitative household members, or all parent/legal Deferred Action for Childhood Arrivals activity.’’ 8 U.S.C. 1232(c)(1). guardian or close relative sponsors in (DACA) were promised that the data in In order to carry out the Department’s appropriate cases. ORR also permits their DACA applications would not be mission to ensure safe release of UAC to under certain circumstances the release proactively shared with ICE for their sponsors, while protecting of children to other relatives who were enforcement purpose; and that there are vulnerable children from traffickers or their primary caregivers prior to also restrictions on what data the others seeking to victimize or exploit receiving the results of a fingerprinting Internal Revenue Service (IRS) can share them, ORR must be able to fingerprint background check. Further, ORR no with DHS, despite mounting pressure to or apply suitability assessments as longer requires verification of enable DHS to use IRS data for appropriate. The rule does not require immigration status information before enforcement purposes. Similarly, fingerprinting or immigration status releasing UAC to sponsors, or mandates another commenter proposed that HHS checks for all cases; ORR uses the Child Abuse and Neglect (CA/N) checks require information that relates to information from background check unless there is a specific and substantial sponsors’ and household members’ results to make release decisions in the child welfare concern. criminal status and immigration status child’s best interest. ORR also engages Congress has prohibited HHS from be sealed upon the conclusion of a in information sharing with other using funds provided in the Emergency suitability assessment. Federal agencies to ensure that children Supplemental Appropriations for Response. The MOA and information are protected from smugglers, Humanitarian Assistance and Security sharing with other agencies is not the traffickers, or others who might seek to at the Southern Border Act, 2019 (Pub. subject of the FSA and the rules victimize or otherwise engage the child L. 116–26) or previously appropriated implementing such Agreement. In in criminal, harmful or exploitative funding to reverse the procedures of the addition, HHS does not control how activity, as required by the TVPRA, 8 first three operational directives, unless another Federal agency may use U.S.C. 1232(c)(1). HHS acknowledges the Secretary determines that a change information HHS shares in order for that some requirements of suitability is necessary to protect an HHS to carry out its FSA and/or TVPRA assessments and information sharing are unaccompanied alien child from being requirements. However, HHS notes that factors that may contribute to a longer placed in danger. Further the Secretary section 224(a) of DHS’s fiscal year 2019 reunification process in some cases, is required to submit the justification for appropriations bars DHS from taking however, HHS must balance its mandate the change in writing to the HHS/Office certain enforcement actions ‘‘against a to promptly release the child with its of Inspector General and to Congress sponsor, potential sponsor, or member equally important mandate of ensuring prior to implementation of the proposed of a household of a sponsor or potential that the child be released into a safe change. See section 403 of Public Law sponsor of an unaccompanied alien environment. 116–26. child [‘UAC’] . . . based on information HHS continuously evaluates its UAC HHS disagrees with the commenters’ shared by [HHS].’’ Program and operations. As part of this assertion that immigration status checks Comment. One organization asserted ongoing review process, ORR evaluated are unnecessary. While ORR does not that HHS would be violating the Fair the effect expanded suitability use immigration status to disqualify a Information Practice Principles (FIPP)

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and the privacy rights of potential responses regarding including Comment. A commenter said that the sponsors by using information from additional process or timelines that United States government should utilize background checks to deport sponsors were not outlined or included in the international rights-based standards for and other relatives. The commenters FSA. Regarding the various denial the care and treatment of children, who cited an April 27, 2017, memorandum procedures specified by commenters, need special protections given their issued by DHS in which DHS extended the safety of UACs and others is vulnerability. FIPPs protections to all persons paramount when deciding whether to Response. HHS notes that the regardless of citizenship or legal status; approve or deny release to a sponsor, proposed rule does not replace the the commenters stated that HHS is and the sponsor denial procedures requirements ORR has for licensed aiding DHS in violating the spirit of two which ORR implements appear in programs to provide a high-quality of the FIPPs principles: Individual section 2.7 of the ORR Policy Guide. standard of care as outlined in ORR’s participation and use limitation. ORR notes that is not possible to have Policy Guide. Rather, the rule adopts the The commenters believe that specific timeframes for release because FSA’s minimum standards for licensed meaningful consent is impossible here each case is unique, and decisions are programs, found at Exhibit 1. Please see because HHS presents parents with a based on multiple factors. However, the introduction to the ORR Policy Hobson’s choice: Either consent to the ORR will address timelines for decision- Guide and section 3.3 of the ORR Policy release of your personal information to making or release in policies and Guide for more information about ORR’s DHS and face possible deportation, or procedures interpreting the regulations special protections for vulnerable allow your child to languish in Federal with the understanding that all children. custody until he or she turns 18 and is decisions be made in a timely manner. Changes to the Final Rule transferred into ICE custody. Historically, ORR utilizes a sponsor care Response. HHS disagrees that any agreement, in which the sponsor signs HHS is not making any changes in the information it shares with DHS would and affirms responsibility to provide for final rule to § 410.400. violate FIPPs. Once again, HHS does not the physical and mental well-being of share information with DHS for law 45 CFR 410.401—Applicability of This the minor, and the proposed rule will Subpart enforcement purposes and notes that not affect this agreement. To ensure a section 224(a) of DHS’s fiscal year 2019 sponsor’s home is safe and appropriate Summary of Proposed Rule appropriations bars DHS from taking for a UAC, ORR has policies and This subpart applies to all ORR certain enforcement actions ‘‘against a procedures in place to conduct a home licensed facilities providing care in sponsor, potential sponsor, or member study (see Section 2.4.2 of the ORR shelters, staff secure facilities, of a household of a sponsor or potential Policy Guide) and to provide post residential treatment centers, or foster sponsor of an unaccompanied alien release services (see Section 6.2 of the child [‘UAC’] . . . based on information care and group homes. ORR Policy Guide). ORR also has an Comment. Some commenters cited shared by [HHS].’’ Additionally, HHS’ appeal process for denying sponsorship March and June 10, 2019 Operational research indicating that the best practice (see section 2.7.7 of the ORR Policy Directives, specifically exempts the vast is to place immigrant youth in foster Guide). The rule does not impact the majority of parent (and legal guardian) family placements and not large requirements regarding home studies, and close relative sponsors from detention or shelter settings. A different post release services, and denial of fingerprint background check commenter suggested that children be release to sponsors in ORR’s policies requirements. placed in orphanages until they reached Comment. The commenters pointed and procedures, nor the aggregated data a certain age. out that § 410.302(f) of the proposed reported by ORR in annual reports. Response. ORR has foster care rule permits ORR to deny reunification Changes to Final Rule programs for some immigrant youth, on the basis that the child’s sponsor will and the proposed rule does not impact not secure the child’s appearance before The rule adopts the substantive terms minimum standards for those programs. DHS or the immigration courts; does not of the corresponding release and See Exhibit 1 of the FSA; see also ORR establish any process by which the child suitability provisions of the FSA, Guide, Sections 1.4.4 and 3.6. ORR does may be protected from an erroneous paragraphs 14 and 17. However, in not place children in orphanages; decision; or be provided notice of such response to commenters’ concerns, HHS orphanages in the U.S. have been a determination or the evidence used to clarifies that the licensed program replaced by foster care systems. make it. providing care for a UAC shall make Changes to the Final Rule One organization proposed expanding continual efforts at family reunification the use of affidavits to require sponsors as long as the UAC is in the care of the HHS is not making any changes in the of children to submit sworn statements licensed program. final rule to § 410.401. attesting that their homes are safe for 45 CFR Part 410, Subpart D, Licensed 45 CFR 410.402—Minimum Standards children. Additionally, the commenter Programs Applicable to Licensed Programs proposed that HHS create an appeals process for denying sponsorship and 45 CFR 410.400—Purpose of This Summary of Proposed Rule produce aggregated annual reports on Subpart In this subpart, ORR described the sponsors it denies. Another commenter Summary of Proposed Rule specific minimum standards of care urged HHS to put requirements each licensed program must follow. regarding home studies, denial of In this subpart, HHS described the Section 410.402 reflected the release to sponsors, and post release standards that licensed programs must minimum standards of care listed in services in the policy and procedure meet in keeping with the FSA, Exhibit 1 of the FSA, which are guide, not the final rule. including the general principles of the consistent with the Flores v. Sessions Response. HHS notes that the settlement agreement of treating all Court order of July 30, 2018, as they language regarding denying release of a minors in custody with dignity, respect, require that licensed programs comply minor derives from paragraph 14 of the and special concern for their particular with applicable state child welfare laws FSA. HHS refers readers to earlier vulnerability. and regulations and that UACs be

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permitted to ‘‘talk privately on the planning, and living arrangements (see education assessments and education phone, as permitted by the house rules ORR Policy Guide, Section 3). services. See ORR Guide, sections 3.3 and regulations.’’ ORR expected Comment. Several commenters wrote and 3.3.5. The proposed rule will not licensed programs to easily meet those about allegations of abuse taking place affect assessments and services. minimum standards and, in addition, to in detention facilities. They also Comment. One medical faculty group strive to provide additional care and mentioned allegations of abuse recommended that HHS strive to reduce services to the UACs in their care. occurring within ORR custody such as trauma among families by adopting Comment. Many commenters stated in Southwest Key facilities in Arizona. Substance Abuse and Mental Health that holding children in facilities that Commenters also submitted an article Services Administration (SAMHSA) are not licensed by state child welfare from Reveal (Aura Bogado, Patrick guidelines for a trauma-informed agencies is inhumane and dangerous. Michels, Vanessa Swales, and Edgar approach, which include: (1) Safety; (2) Several commenters suggested that the Walters, published June 20, 2018) that trustworthiness and transparency; (3) proposed rule is vague and would harm detailed several allegations of abuse at peer support; (4) collaboration and children by overturning longstanding shelters serving children in ORR mutuality; (5) empowerment, voice and conditions that the government custody, including abuse allegations at choice; and (6) sensitivity to cultural, previously agreed to and which have Shiloh Treatment Center in Texas. historical, and gender issues. The effectively protected children. These commenters expressed their commenters believe that the proposed Response. The rule adopts the FSA’s concern that the new rule would allow changes to current regulations violate provisions regarding placement of UACs for longer periods of detention, which standards of trustworthiness, in state-licensed programs. Each would raise the risk of abuse. transparency, collaboration, and licensed program must meet the Response. HHS takes any and all empowerment, and they and they urge minimum standards outlined by the allegations of abuse of UACs seriously. that the current FSA standards be FSA, which will effectively protect The proposed rule will not change retained. ORR’s standards of care or reporting children. Response. HHS notes that it provides requirements. See IFR; ORR Guide, Comment. One commenter urged HHS care for UACs, not adults. The proposed sections 3, 4, and 5. rule does not impact ORR’s policies and and DHS to protect the FSA, stating that Comment. Commenters wrote that knowingly exposing migrant children to many of the migrants who arrive in the procedures for ORR services to UACs, as prison like conditions, while United States have experienced trauma outlined. The proposed rule keeps the simultaneously removing existing and thus, it is important for facilities to FSA minimum standards for licensed mechanisms for court monitoring and provide trauma-informed care to facilities. For responses regarding DHS independent oversight, would be a migrants to help them heal and achieve FRCs, refer to Section 8 ‘‘Detention of deliberate violation of their human self-sufficiency. Families.’’ rights. Response. The proposed rule does not Comment. Several commenters argued Response. ORR’s standards for affect ORR’s mental health services for that HHS omitted certain minimum licensed care provider programs are UACs. It adopts the FSA’s requirement standards. For instance, one adopted from the FSA. For the UAC that licensed programs provide organization found the minimum program, all licensed facilities must appropriate mental health interventions standards at section 410.402 did not meet the minimum standards set forth when necessary and weekly individual provide sufficient safeguards for in Exhibit 1 of the FSA. counseling sessions by trained social children’s health and safety, while Comment. Commenters noted that services staff. Individual counseling another contended that HHS does not even under the current requirements sessions address crisis-related needs, address the educational service around licensing, conditions could including trauma. See also ORR Guide, requirement. Another interest group result in trauma. Commenters contend section 3.3 for more information on commented that the minimum that children’s rooms are cramped and counseling services for UAC. standards do not address basic services subject to uncomfortable temperatures Comment. Several commenters argued such as the provision of food, water, and and they cannot access medical that education and special needs plans medical care. attention right away. Commenters stated are vague and that educational Response. HHS notes that the that unlike licensed shelter placements, assessment needs to be defined. In proposed rule keeps the FSA standards many of ORR’s more restrictive settings addition, they contended that the for licensed facilities, including the closely resemble prison. Children may proposed rule needs to be more specific provision of food, water, and medical be under constant surveillance, required regarding how children’s specific care. The proposed rule does not impact to wear facility uniforms, and have little education needs will be met. One the safeguards for child health and control. commenter noted that few children, if safety. See ORR Guide, sections 3.3 and Response. In § 410.402 of the any, are screened for disability-related 3.4. ORR’s policies and procedures also proposed rule, HHS outlined all the issues upon transfer from ICE to ORR address the education service minimum standards applicable to custody. Another commenter advocated requirement. See ORR Guide, section licensed care provider programs for that ORR should take into account the 3.3.5. The proposed rule does not children in ORR’s care, and included special needs of children, as is required impact ORR’s education services. requirements to comply with child under the Individuals with Disabilities Comment. An organization welfare laws and regulations and all Education Act (34 U.S.C. 1400 et seq.) representing multiple welfare agencies State and local building, fire, health, and 34 CFR 300.7. recommended that HHS include trauma and safety codes. These minimum Response. The provision adopts the screenings and developmental learning; standards were adopted directly from standards of Exhibit 1, including a that outdoor activity time frames be Exhibit 1 of the FSA. Further, the requirement for licensed programs to expanded; that clinical services be proposed rule is consistent with and deliver services in a manner sensitive to trauma-informed; that celebration of does not abrogate ORR’s policies and the complex needs of each individual cultural and religious celebrations be procedures for UAC services, including UAC. HHS takes into account the included; and that internet access for items provided to each UAC, safety special needs of children, through correspondence be required.

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Response. HHS will address specific Response. HHS notes that the Response. The proposed rule did not changes to UAC services through its proposed rule adopts FSA standards for impact medical services or mental policies and procedures. licensed facilities. It requires licensed health services for UAC, which are Comment. Another organization facilities to comply with all applicable culturally- and linguistically- found that service provisions in the state child welfare laws and regulations. appropriate as required by the FSA. See proposed rule did not address the needs The proposed rule also did not change also ORR Guide, sections 3.4 and 3.3. of victims of violence and sexual abuse, ORR’s services for UAC, which The proposed rule does not impact victims who are most likely going to be prioritize safety, development, and well- ORR’s mental health screening tools. women and children. being of children. ORR’s services for Comment. One organization objected Response. Because it adopted the UAC are outlined in section 3.3 of the that the proposed rule did not include provisions of Exhibit 1 of the FSA, the ORR Policy Guide. The proposed provisions for ensuring availability of proposed rule did not change ORR’s minimum standards for licensed licensed programs in geographic areas mental health services for UAC in care, facilities do not change ORR’s policies where children are apprehended. including weekly individual counseling for UACs to have a minimum of two Response. The proposed rule did not sessions by trained social work staff. phone calls per week with their family, impact the location of ORR licensed Individual counseling sessions address and access to community outings. programs, nor the cultural and linguistic any crisis-related needs, including Please see section 3.3 of the ORR Policy requirements for UAC services in ORR sexual abuse and violence. See ORR Guide for more details. care. Policy Guide, section 3.3. Comment. A commenter advocated Comment. One commenter is Comment. One commenter contended hiring of Spanish speaking counselors to concerned that the proposed rule will that ‘‘the proposed rules are, at worst, hear asylum claims and provide put LGBTQ youth in more restrictive expressly prohibited by the FSA and, at education on birth control. settings, increasing their vulnerability to best, incompatible with the letter and Response. HHS notes that it is not an abuse. Other commenters noted that due spirit of the agreement.’’ It also argued immigration enforcement or to negative stereotypes about LGBTQ that the proposed new layer of Federal adjudication agency, and does not hear people as being more likely to engage in rules was duplicative of State law asylum claims. The proposed rule did coercive sexual activity, LGBTQ youth requirements already in place. not impact HHS’ services for UACs, and are more likely than their straight and Response. HHS disagrees that the rule it adopts the FSA’s requirement to cisgender counterparts to face criminal is prohibited by or incompatible with deliver services in a manner sensitive to consequences for consensual sexual the FSA. In fact, the proposed rule UACs’ cultures and native languages. activity. Commenters also asserted that, adopts the FSA’s minimum standards The proposed rule did not impact ORR’s in the juvenile justice system, LGBTQ for ORR licensed facilities. HHS UAC family planning services. See ORR youth are sometimes even classified as recognizes that the proposed rule may Guide, section 3.3. sexual offenders at intake. be duplicative of State licensing Comment. A commenter suggested Response. HHS recognizes that requirements in some respects, and any that ICE and ORR consider issuing LGBTQ youth may have unique needs duplication issues will be addressed in guidance to contractors, non-profits and and concerns, which its care providers ORR policies and procedures. faith-based organizations that are tasked must provide for, under both the FSA Comment. Several commenters with assisting the Federal Government and the proposed rule. In addition, the asserted that UACs are housed in in the care or education of immigrant IFR requires staff training and efforts to prison-like conditions, sleeping on youth. protect LGBTQ youth from abuse. cement floors, using open toilets, and Response. HHS notes that ORR Further, the proposed rule is consistent suffering from exposure to extreme cold already issues guidance in the form of with and does not abrogate existing ORR and insufficient food and water. policies and procedures to the grantees policies to protect and care for LGBTQ Response. HHS believes these public it funds to support the provision of care youth. See ORR Guide, section 3.5. The comments specifically refer to and custody to UACs in its custody. The proposed minimum standards for allegations about CBP facilities (see minimum standards ORR communicates licensed facilities do not impact the § 236.3(g)). HHS provides living are based on the FSA’s minimum quality of care for these vulnerable standards meeting the minimum standards, which the proposed rule has youth. standards of the FSA. The proposed adopted. As a result, the proposed rule Comment. One commenter claimed rule, as well as ORR policies and did not impact ORR’s guidance to that the proposed rule is immoral as procedures, address food and water for contractors, non-profits, and faith-based well as illegal under international law. UACs in care. organizations regarding services for The commenter cited to a portion of Comment. Many commenters and UAC. For more information on ORR’s Article 12 of the Universal Declaration organizations argued the rule removes guidance for UAC services, please see of Human Rights which states: ‘‘No one child protections set in both U.S. child section 3.3 of the ORR Policy Guide. shall be subjected to arbitrary welfare standards and the FSA, Comment. One commenter said that interference with his privacy, family, undermining the safety, development, children, whether unaccompanied or home, or correspondence, nor to attacks and well-being of children. The accompanied, should receive timely, upon his honor or reputation. Everyone commenter argued that the procedures comprehensive medical care that is has the right to the protection of the law that the proposed rule would codify are culturally and linguistically-sensitive by against such interference or attacks.’’ contrary to children’s best interests, medical providers trained to care for Response. HHS notes that the which the law requires HHS to children. The commenter said that proposed rule adopts the FSA’s prioritize. trauma-informed mental health minimum standards for licensed One commenter stated harms may screening should be conducted once a programs, which explicitly include a surface or be aggravated when child is in the custody of US officials UAC’s reasonable right to privacy. unaccompanied minors are placed in via a validated mental health screening Because the rule adopts the FSA’s confined, institutional settings and are tool, with periodic re-screening, standards, this provision does not separated from family members and additional evaluation, and care available impact the privacy standards set forth other community affiliations. for children and their parents. by the FSA for licensed facilities.

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Comment. One organization attorney, children are five times more kids in un-air conditioned rooms in hot recommended the government likely to be deported.46 weather; and improper medical care. In immediately provide minors and UACs Response. HHS notes that the the past five years, the commenter who are taken back into custody with an proposed rule does not change ORR’s stated, police have responded to at least opportunity to contact family members policies for UAC in licensed facilities to 125 calls reporting sex abuse offenses at as well as their attorneys. have access to legal service providers. shelters in Texas that primarily serve Response. As stated in both the FSA The proposed rule for minimum immigrant children, though and the proposed rule, all UACs are standards in licensed facilities states psychologists have said that such provided the opportunity to talk UAC in licensed facilities receive ‘‘Legal records likely undercount the problems privately on the phone subject to house services information regarding the because many immigrant children do rules. The proposed minimum availability of free legal assistance, the not report abuse for fear of affecting standards for licensed facilities do not right to be represented by counsel at no their immigration cases. change ORR’s policies for UAC to have expense to the government, the right to Commenters also cited an a minimum of two phone calls per week a removal hearing before an immigration investigative report claiming that the with their families, and unrestricted judge, the right to apply for asylum or Federal Government continues to place access to preprogrammed phone to to request voluntary departure in lieu of migrant children in for-profit residential contact legal service providers. Please removal.’’ facilities where allegations of abuse see section 3.3 and 4.10.1 of the ORR Comment. Another commenter have been raised and where the Policy Guide for more details. supported locating children in facilities facilities have been cited for serious Comment. One commenter noted that near relatives slated to receive custody, deficiencies. Allegations include failure in a study of immigration court cases and streamlining the custody process. to treat children’s sickness and injuries; Response. The proposed rule does not involving unaccompanied minors over a staff drunkenness; sexual assault; failure impact the location of ORR licensed two year period, the presence of an to check employees’ backgrounds; programs, nor the procedures to approve attorney proved crucial to the fate of the failure to provide appropriate clothing release to appropriate sponsors. children in those cases. In nearly three for children; drugging; and deaths from quarters of the cases (73 percent) where Changes to the Final Rule restraint. According to the commenters, few companies lose grants from DHS the child was represented, the court HHS is not making any changes in the allowed the child to remain in the and HHS based on such allegations. final rule to § 410.402. Response. HHS takes all and any United States. The child was ordered allegations of abuse of UAC seriously. removed in only 12 percent of these 45 CFR 410.403—Ensuring That The proposed rule did not change ORR’s cases while the remaining 15 percent Licensed Programs are Providing standards of care of UAC and reporting filed a voluntary departure order. Where Services as Required by These requirements, as outlined in sections 3, the child appeared in immigration court Regulations 4, and 5 of the ORR Policy Guide. As alone without legal representation, only In this subpart, HHS describes how under the FSA, licensed programs 15 percent were allowed to remain in ORR will ensure licensed programs are operating under the proposed rule are the country. The rest of the providing the services required under subject to state licensing standards, unrepresented minor children in § 410.402. As stated in this section, to monitoring, and investigations. In immigration court were ordered ensure that licensed programs addition, the proposed rule would not deported, 80 percent through the entry continually meet the minimum impact ORR’s monitoring of licensed of a removal order, and 5 percent with standards and are consistent in their facilities for compliance with ORR a voluntary departure order. provision of services, ORR monitors policies and procedures, which occurs Several commenters cited government compliance with these rules. The FSA in addition to state monitoring. Please 43 44 statistics that show that between does not contain standards for how see section 5.5 of the ORR Policy Guide 1997–2017, border arrests decreased often monitoring shall occur, and this for more information on ORR from 1,412,953 to 310,531, while the regulation does not propose to do so. At monitoring of licensed facilities. number of border agents increased from present, ORR provides further Comment. One commenter advocated 6,895 to 19,437. For unaccompanied information on such monitoring in HHS and other Federal departments children’s cases in FY2017, nearly 60% section 5.5 of the ORR Policy Guide should be held accountable for the fear were unrepresented.45 Without an (available at: https://www.acf.hhs.gov/ and life-long psychological damage the orr/resource/children-entering- commenter believes is being inflicted on 43 United States Border Patrol, Nationwide Illegal theunited-states-unaccompanied- alien minors coming into this country. Alien Apprehensions Fiscal Years 1925–2017, section-5#5.5). Response. HHS is committed to the https://www.cbp.gov/sites/default/files/assets/ Comment. One commenter stated that documents/2017-Dec/BP%20Total%20Apps physical and emotional safety and having State licensing is important to wellbeing of all children in ORR’s care. %20FY1925-FY2017.pdf. ensure that facilities are investigated 44 United States Border Patrol, Border Patrol HHS recognizes that many children and Agent Staffing by Fiscal Year, https://www.cbp.gov/ and violations are brought to light. The youth who come into the United States sites/default/files/assets/documents/2017-Dec/BP commenter noted that the Texas State unaccompanied have experienced %20Staffing%20FY1992-FY2017.pdf. health regulators documented roughly traumatic childhood events and that 45 See TRAC Immigration, ‘‘Juveniles— 150 standards violations at more than a Immigration Court Deportation Proceedings’’ migration and displacement can Tracker, http://trac.syr.edu/phptools/immigration/ dozen Southwest Key migrant children contribute significantly to ongoing juvenile/. Select ‘‘Fiscal Year Began’’ from first shelters across Texas, including: stressors and trauma in children. ORR drop-down menu and click ‘‘2017’’; select Children left unsupervised and harming care providers are trained in techniques ‘‘Outcome’’ from the middle pull-down menu, click themselves; staff members belittling ‘‘All’’; select ‘‘Represented’’ from the last drop- for child-friendly and trauma-informed down menu. Starting in FY2018, cases in TRAC children and shoving them; keeping interviewing, assessment, and include all juveniles, unaccompanied children and observation, and they deliver services in children who arrive as a family unit. This change 46 Syracuse University, TRAC Immigration, was made because it is no longer possible to ‘‘Representation for unaccompanied children in a manner that is sensitive to the age, reliably distinguish these two separate groups in the immigration court’’ (Nov. 24, 2014), http:// culture, native, language, and needs of court’s records. trac.syr.edu/immigration/reports/371/. each child. In addition, when

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discharging UACs, ORR may connect policy and make it compliant with the also notes that these provisions of the them with ongoing services as FSA if they find that UACs are not rule are consistent with and do not appropriate, for up to six months, at the transported and held separately from abrogate existing ORR policies on discretion of the sponsor. unrelated adults in most cases. transportation. See ORR Policy Guide, Another individual suggested that the section 3.3.14 Transportation Services. Changes to the Final Rule government should provide families and As these provisions are intended to HHS is not making any changes in the minors transportation to and from their implement the FSA, HHS believes final rule to § 410.403. immigration hearings. further specification in the final rule is Several advocacy organizations and a unnecessary and redundant. 45 CFR Part 410, Subpart E— state’s department of social services Transportation of an Unaccompanied provided comments specific to DHS Changes to Final Rule Alien Child regarding a similar transportation HHS is not deviating from the 45 CFR 410.500—Conducting provision in DHS’s proposed rule as it language of the proposed rule. The rule Transportation for an Unaccompanied related to transportation of children adopts the substantive terms of the Alien Child in ORR’s Custody with unrelated detained adults. For corresponding transportation provisions of the FSA, paragraphs 25 and 26. Summary of Proposed Rule more information on those comments please refer to the DHS comment 45 CFR Part 410, Subpart F, Transfer of In the proposed rule, HHS described sections regarding 8 CFR 236.3(f). an Unaccompanied Alien Child how ORR conducts transportation for Response. The comments received by UACs in ORR’s custody, substantively the Departments on transportation In this subpart, HHS set forth adopting the two provisions of the FSA issues were more substantively provisions for transferring a UAC that govern transportation. ORR concerned with DHS provisions than between HHS facilities. In some cases, proposed that UACs cannot be with ORR provisions. Although both HHS may need to change the placement transported with unrelated detained ORR and DHS provided similar of a UAC. This may occur for a variety adult aliens. The proposed rule also regulatory rules, HHS notes that it does of reasons, including a lack of detailed stated that when ORR plans to release not provide care to adult aliens but only information at the time of apprehension, a UAC from its custody under family for UACs as defined at 6 U.S.C. a change in the availability of licensed reunification provisions (found in 279(g)(2). placements, or a change in the UAC’s §§ 410.201 and 410.302), ORR assists There are only a few instances where behavior, mental health situation, or without undue delay in making ORR might transport an adult alien—in immigration case. transportation arrangements. ORR may, extremely limited emergency 45 CFR 410.600—Principles Applicable in its discretion, provide transportation circumstances (i.e., emergency medical to Transfer of an Unaccompanied Alien to a UAC. care or evacuation); unknowingly, if Child ORR believes the person is a minor but Public Comments and Response he or she is later found to be an adult Summary of Proposed Rule Comment. One commenter after making an age determination (see As specified in 45 CFR 410.600, HHS recommended that if an emergency or 8 CFR 236.3(c) and 45 CFR 410.700); or would adopt the FSA provisions influx changes transportation rules, then if a UAC turns 18 while in ORR custody. concerning transfer of a UAC to ensure: such guidance, which is alluded to in Generally speaking, existing protocols (1) That a UAC is transferred with all of the regulation, should be published and between HHS and DHS provide that his or her possessions and legal papers, open to public comment or included in DHS is responsible for transferring a and (2) that the UAC’s attorney, if the the regulatory text. The commenter is detained adult alien from ORR’s care to UAC has one, is notified prior to a concerned that future guidance may not DHS custody. See DHS–HHS Joint transfer, with some exceptions. align with the FSA after the FSA is Concept of Operations, I. terminated. Transportation, July 31, 2018. In certain Public Comments and Response Response. The proposed rule did not episodic emergencies, ORR may be Comment. Two organizations change the transportation rules for ORR required to transport an adult alien prior commented that UACs should receive transporting UACs during an emergency to DHS assuming custody of and notice of placement in a more restrictive or influx. All ORR policies on influx transferring that adult alien to ICE facility (i.e., a ‘‘staff secure’’ facility) facilities, including transportation, are detention. For instance, if the adult with enough time to protest the transfer publically online, in Section 1.7 of the alien requires emergency medical care before it happens. ORR Guide. The proposed rule did not or evacuation from an ORR care Response. See generally response in change ORR’s policy of posting provider facility due to a natural § 410.206. With respect to the guidance publically online, including disaster, and transfer cannot possibly be organizations’ recommendation that any future guidance that aligns with the completed by DHS due to the UACs receive notice of placement in a proposed rule and the FSA, in the ORR emergency, ORR may be responsible for more restrictive facility in such a Policy Guide. transporting the adult alien to an manner as to allow them to argue Comment. An individual commenter emergency medical provider or assist in against transfer before it occurs, HHS stated that DHS did not define evacuating the adult alien. In these notes that the comment goes beyond the ‘‘operationally feasible,’’ in § 236.3(f) for latter episodic emergencies (which are scope of the FSA, which this rule is purposes of the requirement to transport not exhaustive), under the rule, ORR intended to implement. As both the FSA and hold children separately from does not transport UAC with unrelated and the proposed rule indicate, some unrelated adults, and that DHS and HHS adults in the agency’s care. circumstances necessitate quickly should clarify the percent of time they In response to the comments transferring a UAC (e.g., threats to the expect it will take to be operationally regarding assisting UACs with safety of UACs or others). As a result, feasible to successfully transport and transportation to immigration hearings, HHS will not add any new requirements hold UAC separately from unrelated HHS notes that it is already required to to this provision. But HHS appreciates adults. The commenter asked whether transport UACs to immigration hearings the commenter’s contribution and will DHS and HHS intend to rescind this by statute. See 6 U.S.C. 279(b)(2). HHS consider methods to enable greater

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notice to UACs through subsequent UAC is transferred as opposed to 24 FSA’s standards and medical ethics policies. hours before. Specifically, under this regarding medical and dental Comment. One commenter stated that rule, counsel maybe notified within 24 examinations. Some of the commenters the rule does not provide adequate hours after a UAC is transferred (1) referenced reports and studies notice or opportunity to be heard in the where the safety of the UAC or others indicating that certain medical and event that a mental health professional has been threatened; (2) the UAC has dental examinations cannot provide believes that a youth poses a risk of been determined to be an escape risk accurate age estimates and that harm and must be moved into a more consistent with § 410.204; or (3) where radiographs unnecessarily expose restrictive setting. The commenter said counsel has waived such notice. In all children to radiation when used for that such notice and opportunity to be other circumstances, counsel will have non-medical purposes. One medical heard is necessary to safeguard against advance notice of any transfers. HHS is professional cautioned against using violations of section 504 of the not changing the final rule to include dental radiographs for age Rehabilitation Act of 1973 (29 U.S.C. the American Bar Association’s determination, contending that such 794). standard for the transfer of UAC. tests can only provide an approximate Response. HHS disagrees with the age estimate and may not be able to Changes to Final Rule characterization that the final rule does differentiate between an individual in not provide adequate notice or In the proposed rule, HHS stated that his/her late teens versus an individual opportunity to be heard regarding a it would take all necessary precautions who is 20 or 21 years of age. The transfer to a more restrictive setting. In for the protection of UAC during commenter also expressed concern accordance with 45 CFR 410.206 of the transportation with adults. This about the possibility of the individual final rule, ORR provides each UAC language runs in contradiction to 45 administering these tests not having the placed or transferred to a secure or staff CFR 410.500(a), which states that ORR requisite expertise, and not obtaining secure facility with a notice of the does not transport UAC with unrelated informed consent of the patient. One reasons for the placement in a language detained adult aliens. Therefore, the commenter referred to medical and the UAC understands, and does so sentence from 45 CFR 410.600(a) that, dental examinations as ‘‘pseudo- within a reasonable amount of time. In ‘‘ORR takes all necessary precautions for science.’’ addition, any UAC in ORR care also has the protection of UACs during Multiple commenters expressed an opportunity to challenge ORR transportation with adults,’’ will be concern that the proposed procedures Placement decisions in Federal District struck from the final rule. place inappropriate weight on medical Court. HHS notes that there will be instances tests to determine whether children are Comment. One commenter said that when UACs are transferred with adult younger than or older than 18 years of the requirements for providing notice to staff members. These situations are age. The commenters stated that the UAC counsel prior to transferring a UAC covered under 45 CFR 411.13(a) of the proposed procedures do not match FSA or minor do not align with the American Interim Final Rule (IFR) on the or TVPRA requirements for considering Bar Association’s standards for the Standards to Prevent, Detect, and medical tests and are inconsistent with custody, placement, care, legal Respond to Sexual Abuse and Sexual agency practice. For example, the representation, and adjudication of Harassment Involving Unaccompanied commenters stated that the proposed UACs, which recommends both oral and Children. The IFR states, ‘‘Care provider procedures fail to indicate that medical written notice to the child and the facilities must develop, document, and tests cannot serve as the sole basis for child’s attorney prior to transfer to make their best effort to comply with a age determinations, limit medical include the reason for transfer; the staffing plan that provides for adequate testing to bone and dental radiographs, child’s right to appeal the transfer; and levels of staffing, and, where applicable and to account for evidence the procedures for an appeal. The under State and local licensing demonstrating the unreliability of American Bar Association’s standards standards, video monitoring, to protect medical tests to make accurate age further recommend that the notice [UACs] from sexual abuse and sexual determinations.47 include the date of transfer and the One commenter harassment.’’ This provision applies to expressed concern about the lack of location, address, and phone number of transfers as well. the new facility. specificity governing when medical and The same commenter, along with a 45 CFR Part 410, Subpart G—Age dental examinations will be used, the state agency, raised a concern that the Determinations absence of guidance regarding who will exception to providing prior notice to make the age determination, and the 45 CFR 410.700—Conducting Age level of training or expertise required to counsel in ‘‘unusual and compelling Determinations circumstances’’ is too broad and will conduct such examinations and ‘‘result in arbitrary and capricious Summary of Proposed Rule determinations. Multiple commenters recommended application.’’ Section 410.700 incorporates both the that age determination procedures be Response. HHS declines to adopt the provisions of the TVPRA, 8 used as a last resort, that age comment’s suggestion that ORR adopt U.S.C.1232(b)(4), and the requirements determination findings be shared with the ABA’s standard for transfer of UAC of the FSA, in setting forth standards for the child in writing and in a language in the ‘‘Standards for the Custody, age determinations. These take into he/she understands, that the findings be Placement and Care; Legal account multiple forms of evidence, subject to appeal, and that age Representation; and Adjudication of including the non-exclusive use of Unaccompanied Alien Children in the radiographs, and may involve medical, 47 Section 235(b)(4) of the TVPRA (‘‘to make a United States.’’ The language used in dental, or other appropriate procedures prompt determination of the age of an alien, which § 410.600 pulls its language directly to verify age. shall be used by the Secretary of Homeland Security from the FSA (paragraph 27), and the and the Secretary of HHS for children in their only difference between the ABA’s Public Comments and Response respective custody. At a minimum, these procedures shall take into account multiple forms suggested standard for transfer of UAC Comment. A number of commenters of evidence, including the non-exclusive use of and the proposed rule is that counsel expressed concern about whether the radiographs, to determine the age of the may be notified within 24 hours after a proposed regulations adhere to the unaccompanied alien.’’).

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determination procedures be conducted negligently or intentionally categorizes a to legal services which is not in the best by an independent, multidisciplinary child as an adult under this regulation. interest of the child. team of medical and mental health Commenters and organizations argued Response. HHS disagrees with professionals, social workers, and legal that the continual re-determination of a commenters who stated that HHS’ counsel. The commenters also child’s UAC status would deny children proposals did not accord with the FSA, recommended that children have the of their right to due process, legal which states as follows: ‘‘If a reasonable right to refuse a procedure that subjects protections and access to social services person would conclude that an alien them to medical risks, pursuant to the if they were determined to not be a detained by the INS is an adult despite international norm of what is in the best UAC. his claims to be a minor, the INS shall interest(s) of the child as well as One organization noted that the treat the person as an adult for all medical ethical principles of patient reassessment of a child exacerbates their purposes, including confinement and autonomy. vulnerability and contradicts the very release on bond or recognizance. The Several commenters expressed purpose of U.S. anti-trafficking law. INS may require the alien to submit to concern about age determinations being Organizations and commenters further a medical or dental examination based on the ‘‘totality of the evidence noted if a child was determined to not conducted by a medical professional or and circumstances’’ and questioned be a UAC, many rights would be to submit to other appropriate whether that basis is consistent with the stripped from the child, including the procedures to verify his or her age. If the TVPRA’s requirement to use multiple right to have their asylum claims heard INS subsequently determines that such forms of evidence for determining before the asylum office and the an individual is a minor, he or she will whether a child is under or over 18 exception to the one-year filing be treated as a minor in accordance with years of age. Another commenter deadline. this Agreement for all purposes.’’ FSA expressed support for DHS and HHS One commenter suggested that paragraph 13. The FSA uses a personnel maintaining the flexibility to providing a presumption of minor status ‘‘reasonable person’’ standard and use multiple methods for age when there is doubt, considering only specifically states that the INS ‘‘may determinations. The commenter stated reliable evidence, and providing an require’’ submitting to a medical or that the proposed standards and appeals process would ensure fewer dental examination. Such language does thresholds are mandated for children find themselves incorrectly not place restrictions on the authority jurisdictional as well as medical designated as adults. Another for ORR to require a medical or dental examination. In addition, the TVPRA reasons, because ORR does not have commenter suggested placing custodial authority over individuals 18 states: ‘‘The Secretary of Health and individuals in HHS custody, not DHS years of age or older. Human Services, in consultation with custody, during the age determination A number of commenters expressed the Secretary of Homeland Security, process. concern about the possibility of shall develop procedures to make a incorrect age determinations. For One commenter expressed general prompt determination of the age of an example, one commenter stated that the concern about DHS and HHS using alien, which shall be used by the rule would reduce or eliminate that the different language within the proposed Secretary of Homeland Security and the current ORR policy requiring a 75 regulations that may lead to disparate Secretary of Health and Human Services percent probability threshold for age processes for determining age. The for children in their respective custody. determinations. commenter stated that the proposed At a minimum, these procedures shall Multiple commenters noted that HHS language does not discuss the take into account multiple forms of differences in race, ethnicity, gender, reasonable person standard, does not evidence, including the non-exclusive nutritional standards, and poverty include a specific evidentiary standard use of radiographs, to determine the age impact perceptions of age and may through which to assess multiple forms of the unaccompanied alien.’’ Again, negatively influence the age of evidence, does discuss the non- nothing in such language places limits determination process leading to exclusive use of radiographs whereas on when radiographs may be required, inaccurate age determinations. For the DHS language does not mention although it does state that procedures example, one commenter cited articles radiographs as an option, and does not shall take into account multiple forms of concluding that the age of young people require a medical professional to evidence, which is also reiterated in the is often overestimated and exacerbated administer the radiographs. The rules at § 410.700. when there are differences in race. This commenter suggested that DHS and Commenters suggested types of commenter expressed concern that this HHS propose specific and identical information that an agency can use in would have disproportionate effects on language regarding age determination addition to medical and dental certain indigenous populations. Another procedures and requirements. examinations and radiographs. While commenter cited a study indicating that Organizations and commenters argued the FSA, the TVPRA and the proposed ‘‘black felony suspects were seen as 4.53 that HHS should not have the authority rule specifically list medical and dental years older than they actually were.’’ to re-determine if a minor is a UAC or examinations and radiographs, HHS Multiple commenters expressed not because it impacts their immigration provides, in policy, a list of additional concern about the lack of age benefits and this is contrary to Federal information that can be considered, determination appeal procedures. One law, see e.g., 6 U.S.C. 279(a). They including the types of evidence of the commenters stated that the lack further argued that this would cause suggested by commenters like the of an appeal mechanism compounds the confusion to UAC on how and when child’s statements.48 possibility of arbitrary or baseless they meet certain legal immigration HHS believes the commenters’ assessments, with serious consequences obligations and it would likely impact concerns about the reliability of for minors in terms of their placement their access to legal assistance. They in and release from detention. Another noted that UAC receive access to pro 48 Office of Refugee Resettlement, Children commenter asked what remedy exists bono legal services because of their UAC Entering the United States Unaccompanied: Section 1, U.S. DEP’T OF HEALTH & HUM. SERV. (Jan. 30, for a child falsely categorized as an designation and by allowing ORR to re- 2015, rev. Jul. 5, 2016), https://www.acf.hhs.gov/ adult and what repercussion a determine their status would undercut orr/resource/children-entering-the-united-states- government official would face if he/she ORR’s responsibility to facilitate access unaccompanied-section-1.

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radiographs and medical or dental Many commenters wrote about the Several commenters raised concerns examinations as part of an age requirement that age determinations be that the rule does not provide for an determination process are addressed by based on the ‘‘totality of the evidence appeals process or a limit on the the regulatory text requiring multiple and circumstances’’ DHS proposed in number of age determinations, allowing forms of evidence, including ‘‘non- § 236.3(c). One commenter noted that for continuous redeterminations. HHS exclusive use of radiographs,’’ to HHS did not include this language in policy allows an individual or his/her determine age. Recognizing that there is subpart G and expressed concern that designated legal representative to no one test appropriate for every child this might create disparate processes. present new information or evidence in every case, HHS, in compliance with Based on the TVPRA, which requires related to an age determination at any the TVPRA, requires in its rule HHS and DHS to use the same time.51 A limitation on the number of ‘‘multiple’’ forms of evidence when procedures, HHS has added the totality times an age determination can occur is conducting age determination. HHS of the circumstances language to inappropriate. An arbitrary limit may interprets ‘‘multiple forms of evidence’’ § 410.700 in this final rule. The explicit negatively affect an individual who to mean a totality of the evidence. Here, instruction that agencies use the totality wishes to have an age redetermination. HHS is trying to avoid an instance of the evidence and circumstances when And if there is reason to believe that an where those determining age simply making an age determination enhances individual is not in an appropriate rely on two or three pieces of evidence, the TVPRA’s language of ‘‘multiple placement, then safety concerns and and ignore potentially reliable evidence sources.’’ statutory limits on jurisdiction may merely because a standard of two or In response to the request for demand that an age determination take more pieces of evidence have been additional clarity about what constitutes place. Additionally, the totality of the presented. But HHS notes that Congress the totality of the evidence and the evidence and circumstances language chose to include radiographs as a type circumstances, HHS notes that each age requires the agency to consider all new of evidence that agencies can use, and determination is an adjudication, where evidence, regardless of whether there HHS will not exclude their the ORR responsible staff review the has already been an age determination. consideration in this rule. evidence in its totality. The ORR Guide Therefore, HHS does not believe a In addition, ORR states through at section 1.6 provides ample formal appeals process or limitation on guidance that the medical and dental description of how ORR reviews the age the number of age determinations is examinations and radiographs, will be determination process. While some necessary or in the best interest of the conducted by medical professionals evidence may be weighted more than agencies or UACs. Moreover, neither the with experience conducting age other evidence, HHS will only make an FSA nor the TVPRA requires an appeals determinations and will take into age determination adjudication after process for the age determination. account the child’s ethnic and genetic weighing all of the evidence. Adding Changes to Final Rule background.49 Relying on experienced more specificity would take away from HHS will add the ‘‘totality of the medical professionals also addresses the holistic approach envisioned with evidence and circumstances’’ language concerns raised by commenters that the the totality language and could lead to into § 410.700 so that the age proposed rule fails to specify reliability a situation where the agency is unable determinations decisions by HHS and standards or who will perform the tests. to consider relevant information DHS have the same standard. While the HHS depends on the experience and because it was not listed. language of the DHS regulation differs professional opinion of the medical One commenter was concerned that slightly from the HHS language, professional choosing and performing the totality of the evidence and primarily because DHS transfers adults an examination. circumstances language would impact and HHS does not, both provisions Similarly, HHS expects those HHS’ 75 percent probability threshold contain the same fundamental professionals who perform those tests to for age determinations. Under current standards. These standards are the use do so in accordance with medical and HHS policy, ‘‘[I]f an individual’s of a totality of the evidence standard, ethical standards. HHS declines to add estimated probability of being 18 or including the non-exclusive use of additional standards beyond the current older is 75 percent or greater according radiographs; compliance with the FSA standards that apply to all medical to a medical age assessment, and this reasonable person standard; and professionals. evidence has been considered in authorization to require an individual to HHS agrees with the commenter who conjunction with the totality of the submit to a medical or dental noted the importance of age evidence, ORR may refer the individual examination conducted by a medical determination because HHS only has to DHS.’’ 50 Adopting the totality of the professional or to submit to other jurisdiction over persons under 18. If a evidence and circumstances language appropriate procedures to verify age. person is determined to be an adult, that would not eliminate the 75 percent person cannot be placed in HHS threshold because similar language 45 CFR 410.701—Treatment of an custody even if that person is already exists with that threshold in Individual Who Appears To Be an Adult undergoing an age redetermination. If policy. ORR does not intend to revise its Summary of Proposed Rule DHS has determined that an individual policy in this regard. The 75 percent Section 410.701 states that if the in its custody is an adult, but the threshold is consistent with totality of procedures of § 410.700 would result in individual claims otherwise, HHS the evidence and circumstances a reasonable person concluding that an cannot place an alien into HHS custody language, and adds an additional individual is an adult, despite his or her while the individual contests DHS’s requirement on the agency when claim to be a minor, ORR must treat that determination. making an age determination. person as an adult for all purposes. As

49 Office of Refugee Resettlement, Children 50 Office of Refugee Resettlement, Children 51 Office of Refugee Resettlement, Children Entering the United States Unaccompanied: Section Entering the United States Unaccompanied: Section Entering the United States Unaccompanied: Section 1, U.S. DEP’T OF HEALTH & HUM. SERV. (Jan. 30, 1, U.S. DEP’T OF HEALTH & HUM. SERV. (Jan. 30, 1, U.S. DEP’T OF HEALTH & HUM. SERV. (Jan. 30, 2015, rev. Jul. 5, 2016), https://www.acf.hhs.gov/ 2015, rev. Jul. 5, 2016), https://www.acf.hhs.gov/ 2015, rev. Jul. 5, 2016), https://www.acf.hhs.gov/ orr/resource/children-entering-the-united-states- orr/resource/children-entering-the-united-states- orr/resource/children-entering-the-united-states- unaccompanied-section-1. unaccompanied-section-1. unaccompanied-section-1.

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with § 410.700, ORR may take into specific list of evidence that can be removal proceedings is not related to account multiple forms of evidence, considered may lead to the exclusion of the age determination regulation— including the non-exclusive use of relevant information. Thus, HHS which is about the proper placement of radiographs, and may require such an declines to make the suggestions made an individual (in DHS or ORR legal individual to submit to a medical or by the commenters; however, HHS has custody) and not removal proceedings. dental examination conducted by a changed the proposed rule at § 410.700 In addition, the suggestion is medical professional or other to add the ‘‘totality of the inconsistent with the FSA, which set appropriate procedures to verify age. circumstances’’ standard proposed by standards specifically for people under DHS to ensure that all evidence is 18. The suggestion also would violate Public Comments included in the age determination the HSA and the TVPRA, both of which Several commenters expressed process. intended specific protections for people concern about how DHS would interpret HHS declines to adopt a presumption under 18. Congress also granted HHS and apply the FSA’s reasonable person that an individual is a minor until and DHS the authority to conduct age standard and pointed to what they proven otherwise. Section 410.701 determinations in 8 U.S.C. 1232(b)(4). perceived as a lack of clarity on how the requires HHS to treat a person The fact that Congress created the standard is defined. Multiple determined to be an adult as an adult authority for DHS and HHS to conduct commenters expressed concern that the and to follow the process outlined in age determinations demonstrates that proposed language fails to provide § 410.700 to change an individual’s Congress recognized that children need adequate specificity about the type and status from a minor to adult. protection and intended accuracy over amount of evidence used to inform the Additionally, in policy, HHS provides administrative consistency. standard. For example, one commenter ‘‘[u]ntil the age determination is made, stated that the reasonable person the unaccompanied alien child is Changes to Final Rule standard must be informed by entitled to all services provided to UAC HHS is not making any changes to the consideration of multiple forms of in HHS care and custody.’’ 52 While it is rule for § 410.701, but states that evidence pursuant to the TVPRA, not clear what commenters intended by because such regulation refers back to whereas another commenter suggested the phrases ‘‘presumption’’ and ‘‘proven § 410.700, it also will incorporate a incorporating informational interviews otherwise,’’ the commenters appeared to totality of the evidence and and attempts to gather documentary intend something more extensive than circumstances standard. evidence as part of the standard. the ORR age determination process— 45 CFR Part, 410 Subpart H, Another commenter stated that, such as, perhaps a judicial review or a Unaccompanied Alien Children’s pursuant to the FSA, the reasonable standard higher than the reasonable Objections to ORR Determinations person standard must be initially person standard of the FSA. However, informed by the child’s own statements setting a presumption that individuals 45 CFR 410.800–410.801—Procedures regarding his or her own age. Multiple are minors until proven otherwise is not Summary of Proposed Rule commenters expressed concern about contemplated in the FSA nor by how medical or dental examinations Congress. A presumption of minority is While the FSA at paragraph 24(B) and will or will not inform the reasonable not consistent with the reasonable 24(C) contains procedures for judicial person standard, with one commenter person standard, which allows for the review of a UAC’s shelter placement stating that the inclusion of unreliable agencies to look at the totality of the (including in secure or staff-secure), and medical procedures in the reasonable evidence and circumstances and a standard of review, the agreement is person standard introduces a further determine whether someone is under clear that a reviewing Federal District layer of arbitrariness to the process of 18. Thus, HHS declines to include this Court must have both ‘‘jurisdiction and age determination. recommendation. venue.’’ Once these regulations are Other commenters stated that an Relatedly, a commenter raised a finalized and the FSA is terminated, it individual claiming to be a minor concern that it is more dangerous for a would be even clearer that any review should continue to be treated as a minor minor to be housed with adults than it by judicial action must occur under a until age is confirmed through multiple is for an adult to be housed with minors. statute where the government has forms of evidence. One of these However, this comment focused only on waived sovereign immunity, such as the commenters stated that it is more the individual adult who is the subject Administrative Procedure Act. dangerous for a minor to be detained of the age determination and not the Therefore, HHS did not propose with adults than to have an individual other UACs housed alongside him or regulations for most of paragraphs 24(B) who claims to be a minor, but is not, her in a group home setting. HHS and 24(C) of the FSA, although it did detained with other minors. believes that both scenarios present a propose that all UACs continue to Organizations noted that in the risk of harm and will not transfer a receive a notice stating as follows: ‘‘ORR interest of administrative consistency, person until an age determination has usually houses persons under the age of children designated as UACs should been made. 18 in an open setting, such as a foster keep this designation throughout their Commenters wrote that, for or group home, and not in detention removal proceedings. administrative consistency, agencies facilities. If you believe that you have Response. HHS notes that neither the should not conduct age determinations not been properly placed or that you FSA nor the TVPRA require that a and the designation of UAC should last have been treated improperly, you may specific amount of evidence be through the individual’s removal call a lawyer to seek assistance. If you considered in an age determination; the proceedings. The comment about the cannot afford a lawyer, you may call one TVPRA simply requires HHS to use UAC designation lasting throughout from the list of free legal services given multiple forms of evidence. Practically to you with this form.’’ The proposed speaking, the same amount of evidence 52 Office of Refugee Resettlement, Children rule also contained a requirement will not be available in every case, and Entering the United States Unaccompanied: Section parallel to that of the FSA that when 1, U.S. DEP’T OF HEALTH & HUM. SERV. (Jan. 30, requiring a specific amount of evidence 2015, rev. Jul. 5, 2016), https://www.acf.hhs.gov/ UACs are placed in a more restrictive would be arbitrary and operationally orr/resource/children-entering-the-united-states- level of care, such as a secure or staff impractical. Relatedly, creating a unaccompanied-section-1. secure facility, they receive a notice—

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within a reasonable period of time— behavior in order to ensure the child is practices. Further, having an explaining the reasons for housing them properly placed in the least restrictive independent hearing process take place in the more restrictive level of care. setting that is appropriate for the child’s within the same Department is Consistent with the July 30, 2018 order needs. consistent the FSA at the time it was of the Flores court, the proposed rule implemented, when both the former INS Changes to Final Rule stated that the notice must be in a and EOIR were housed within DOJ. language the UAC understands. Finally HHS has made no changes to the rule HHS thus proposed regulations to the proposed provision required that text at §§ 410.800–410.801 because the afford the same type of hearing ORR promptly provide each UAC not rule fully the relevant requirements of paragraph 24(A) calls for, while released with a list of free legal services the FSA and TVPRA. recognizing the transfer of responsibility providers compiled by ORR and of care and custody of UAC from the 45 CFR 410.810 ‘‘810 Hearings’’ provided to UAC as part of a Legal former INS to HHS ORR. Specifically, Resource Guide for UAC (unless Summary of Proposed Rule the proposed rule included provisions previously given to the UAC). Consistent with subpart C, see whereby HHS would create an independent hearing process that would Public Comments and Response § 410.301(a), HHS proposed an internal administrative hearing process to serve be guided by the immigration judge Comment. Some commenters wrote the relevant functions of bond bond hearing process currently in place that the proposed rule does not give redetermination hearings described in for UACs under the FSA. The idea was UACs enough notice or access to to provide essentially the same paragraph 24A of the FSA. information about his or her placement substantive protections as immigration The proposed rule made no provision in a staff secure or secure facility; that court custody hearings, but through a for immigration judges employed by the UACs should be provided notice of the neutral adjudicator at HHS rather than DOJ to conduct bond redetermination reasons for their placement in secure or DOJ. staff secure placements, and have the hearings for UACs under paragraph Under the proposal, the Secretary opportunity to contest such placement, 24(A) of the FSA. DOJ has concluded would appoint independent hearing before they are referred to such that it no longer has statutory authority officers to determine whether a UAC, if facilities; and that placements must be to conduct such hearings. In the HSA, released, would present a danger to accompanied by periodic reviews. Congress assigned responsibility for the community (or flight risk). The hearing Response. This section is consistent ‘‘care and placement’’ of UACs to HHS’ officer would not have the authority to with current ORR practice ORR, and specifically barred ORR from release a UAC, as the Flores court has implementing statutory and FSA requiring ‘‘that a bond be posted for [a already recognized that paragraph 24(A) requirements (see paragraph 24A), by UAC] who is released to a qualified of the FSA does not permit a which children are provided a written sponsor.’’ 6 U.S.C. 279(b)(1)(A), (4). In determination over the suitability of a explanation of the reasons for their the TVPRA, Congress reaffirmed HHS’ sponsor. Specifically, the Ninth Circuit placement at secure or staff secure care responsibility for the custody and explained that ‘‘as was the case when providers in a language they placement of UACs. 8 U.S.C. 1232(b)(1), the Flores Settlement first went into understand, within a reasonable time (c), and imposed detailed requirements effect, [a bond hearing] permits a system either before or after ORR’s placement on ORR’s release of UACs to proposed under which UACs will receive bond decision, see ORR Policy Guide, section custodians—including, for example, a hearings, but the decision of the 1.2.4 and 1.4.2. In many cases, ORR provision authorizing ORR to consider a immigration judge will not be the sole places children in restrictive placements UAC’s dangerousness and risk of flight factor in determining whether and to because of new information or a child’s in making placement decisions. 8 U.S.C. whose custody they will be released. disruptive behavior, which makes it 1232(c)(2)(A). Congress thus appears to Immigration judges may assess whether impossible for the child to remain at a have vested HHS, not DOJ, with control a minor should remain detained or shelter care facility. For example, some over the custody and release of UACs, otherwise in the government’s custody, shelter care providers are prohibited and to have deliberately omitted any but there must still be a separate under their State licensing requirements role for immigration judges in this area. decision with respect to the to house children with violent criminal Although in Flores v. Sessions, the implementation of the child’s histories. When ORR discovers new Ninth Circuit concluded that neither the appropriate care and custody.’’ Flores, information indicating such a history, it HSA nor the TVPRA superseded the 862 F.3d at 878. The Flores district must immediately ensure the child is FSA’s bond-hearing provision. 862 F.3d court, too, stated: ‘‘To be sure, the transferred or risk jeopardizing the at 881. The court did not identify any TVPRA addresses the safety and secure shelter’s licensing. Under ORR policy, affirmative statutory authority for placement of unaccompanied care providers must provide written immigration judges employed by DOJ to children.... But identifying notice of the reasons for placement in conduct the custody hearings for UACs. appropriate custodians and facilities for secure or staff secure settings at least ‘‘[A]n agency literally has no power to an unaccompanied child is not the same every 30 days a child is in such a act . . . unless and until Congress as answering the threshold question of placement. This requirement goes confers power upon it.’’ La. Pub. Serv. whether the child should be detained in beyond the TVPRA, 8 U.S.C. Comm’n v. FCC, 476 U.S. 355, 374 the first place—that is for an 1232(c)(2)(A), which requires the (1986). HHS, however, as the legal immigration judge at a bond hearing to Secretary to prescribe procedures to custodian of UACs who are in Federal decide.... Assuming an immigration review placements in secure facilities, custody, clearly has the authority to judge reduces a child’s bond, or decides such as juvenile detention centers. The conduct the hearings envisioned by the he or she presents no flight risk or TVPRA is silent on staff-secure FSA. It also is sensible, as a policy danger such that he or she needs to facilities—which generally are much matter, for HHS to conduct the hearings remain in HHS/ORR custody, HHS can like non-secure shelter facilities, but envisioned by the FSA, because unlike still exercise its coordination and may include a higher staff-UAC ratio to immigration courts, HHS as an agency placement duties under the TVPRA.’’ manage behavior. In practice, care has expertise in social welfare best Flores v. Lynch, No. CV 85–4544 DMG providers continuously assess a child’s practices, including child welfare at 6 (C.D. Cal. Jan. 20, 2017).

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Thus, the hearing officer would standard of Matter of Guerra, 24 I&N any level of care may request an 810 decide only the issues presented by Dec. 37 (BIA 2006).53 Thus, under hearing, but hearings for children in paragraph 24(A) of the FSA—whether current practice, the burden is on the non-restrictive placements (e.g., shelter the UAC would present a danger to the UAC to demonstrate that he or she placements) would likely be community or a risk of flight (that is, not would not be a danger to the community unnecessary, because ORR would likely appearing for his or her immigration (or flight risk) if released. Due to the stipulate that such children, by virtue of hearing) if released. For the majority of unique vulnerabilities of children and their placement type are not dangerous UACs in ORR custody, ORR has subsequent enactment of the TVPRA, or flight risks. HHS also stated that it determined they are not a danger and however, HHS requested comments on expected that the hearing officer would therefore has placed them in shelters, whether the burden of proof should be create a process for UACs or their group homes, and in some cases, staff on ORR to demonstrate that the UAC representatives to directly request a secure facilities. For UACs that request would be a danger or flight risk if hearing to determine danger (or flight a hearing, but ORR does not consider a released. risk). During the 810 hearing, the UAC danger, ORR will concur in writing and Under the proposed rule, ORR also could choose to be represented by a a hearing will not need to take place. In would take into consideration the person of his or her choosing, at no cost these cases, a hearing is not necessary hearing officer’s decision on a UAC’s to the government. The UAC could or even beneficial and would simply be level of dangerousness when assessing present oral and written evidence to the a misuse of limited government the UAC’s placement and conditions of hearing officer and could appear by resources. However, for some children placement, but, consistent with current video or teleconference. ORR could also placed in secure facilities (or otherwise practice under the FSA, the hearing choose to present evidence either in assessed as a danger to self or others), officer would not have the authority to writing, or by appearing in person, or by the hearing may assist them in order a particular placement for a UAC. video or teleconference. ultimately being released from ORR If the hearing officer determines that Because the 810 hearing process custody in the event a suitable sponsor the UAC would be a danger to the would be unique to ORR and HHS, if a is or becomes available. community (or a flight risk) if released, UAC turned 18 years old during the As is the case now, under section 2.9 the decision would be final unless the pendency of the hearing, the of the ORR Policy Guide (available at: UAC later demonstrates a material deliberations would have no effect on https://www.acf.hhs.gov/orr/resource/ change in circumstances to support a DHS detention (if any). children-entering-the-united- second request for a hearing. Similarly, HHS invited public comment on statesunaccompanied-section-2#2.9), because ORR might not have yet located whether the hearing officers for the 810 the hearing officer’s decision that the a suitable sponsor at the time a hearing hearings should be employed by the UAC is not a danger to the community officer issues a decision, ORR might Departmental Appeals Board, either as will supersede an ORR determination find that circumstances have changed Administrative Law Judges or hearing on that question. HHS does not have a by the time a sponsor is found such that officers, or whether HHS would create two-tier administrative appellate system the original hearing officer decision a separate office for hearings, similar to that mirrors the immigration judge-BIA should no longer apply. Therefore, the the Office of Hearings in the Centers for hierarchy. To provide similar proposed regulation stated that ORR Medicare & Medicaid Services. See protections without such a rigid could request the hearing officer to https://www.cms.gov/About-CMS/ hierarchy, the proposed rule would make a new determination if at least one Agency-Information/CMSLeadership/ allow appeal to the Assistant Secretary month had passed since the original Office_OHI.html. of ACF (if the appeal is received by the decision, and ORR could show that a Assistant Secretary within 30 days of material change in circumstances meant While the FSA contains procedures the original hearing officer decision). the UAC should no longer be released for judicial review of a UAC’s placement The Assistant Secretary would review due to danger (or flight risk). in a secure or staff secure shelter, and factual determinations using a clearly Requests for hearings under this a standard of review, once these erroneous standard and legal section (‘‘810 hearings’’) could be made regulations are finalized and the FSA is determinations on a de novo basis. by the child in ORR care, by a legal vacated, HHS did not propose any Where ORR appeals, there would be no representative of the child, or by regulations for such review by Federal stay of the hearing officer’s decision parents/legal guardians on their child’s courts should occur under extant unless the Assistant Secretary finds, behalf. These parties could submit a statutory authorizations, including, within 5 business days of the hearing written request for the 810 hearing to where applicable, the APA, and not via officer decision, that a failure to stay the the care provider using an ORR form 54 HHS regulations or a consent decree. decision would result in a significant or through a separate written request Public Comments and Response danger to the community presented by that provides the same information the UAC. That written stay decision requested in the ORR form, because the Several commenters wrote about the must be based on clear behaviors of the questions to be adjudicated at 810 proposal to update the provision for UAC while in care, and/or documented hearings are relevant mainly to UACs bond hearings under DHS proposed 8 criminal or juvenile behavior records placed in secure, RTC, and staff secure CFR 236.3(m) and ‘‘810 hearings’’ under from the UAC. Otherwise, a hearing facilities. ORR would provide a notice HHS proposed 45 CFR 410.810. Because officer’s decision that a UAC would not of the right to request the 810 hearing both provisions related to paragraph be dangerous (or a flight risk) if to these UACs. Technically, a UAC in 24A of the FSA, comments sometimes released, would require ORR to release transitioned fluidly between being the UAC pursuant to its ordinary 53 The Flores District Court specifically cited the directed toward DHS and HHS. As with procedures on release as soon as ORR law of 8 U.S.C. 1226 and 8 CFR 1003.19, 1236.1(d). the comments related to 8 CFR determined a suitable sponsor. See Flores v. Sessions, 2:85–cv–04544, supra at 2, 236.3(m), the comments related to 810 In accordance with the Flores district 6. hearings largely concerned 54 The form currently used under the FSA is court’s order analogizing Flores custody available at https://www.acf.hhs.gov/sites/default/ compatibility with the text of the FSA hearings to bond hearings for adults, files/orr/request_for_a_flores_bond_hearing_01_03_ and case law interpreting the FSA, and immigration judges currently apply the 2018e.pdf (last visited Aug. 12, 2018). due process concerns. However,

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commenters expressed various other hearing process. As noted below, at the or flight risks to begin with. The concerns as well. time the FSA was signed, INS and the alternative to allowing UACs to request Comment. Many comments argued immigration courts both resided within such hearings would be to place every that the proposed transition of bond the DOJ—similar to what HHS is UAC in an 810 hearing as a default. This hearings from a DOJ-based finalizing in this rule, where an would impose a heavy burden on administrative immigration court to an independent HHS office would operate government resources while providing administrative setting in HHS does not the hearings. Moreover, immigration no benefit for the overwhelming comply with the FSA and applicable judges are not administrative law majority of UACs, most of whom are in case law. The commenters reasoned that judges, but rather are ‘‘attorneys whom shelter-level care and therefore are not paragraph 24(A) of the FSA requires the Attorney General appoints as considered dangerous or flight risks to minors in deportation proceedings to be administrative judges.’’ 8 CFR begin with. The best solution is, as afforded a bond redetermination hearing 1003.10(a). Immigration judges act as written in the rule, to notify children in before an immigration judge in every the Attorney General’s ‘‘delegates’’ in more restrictive placements of their case. They further pointed to the the cases that come before them. right to request 810 hearings, connect decision in Flores v. Sessions, 862 F.3d Immigration judges are governed by them with legal service providers, and 863 (9th Cir. 2017) as evidence that the decisions by the Attorney General allow them to decide whether to request Ninth Circuit, in interpreting and (through a review of a decision of the a hearing. Consistent with existing applying the FSA had already ruled BIA, by written order, or by practice, the rule does not impose any against the government when it argued determination and ruling pursuant to timeframe within which UACs must that the limiting of bond hearings section 103 of the Immigration and request 810 hearings. Also, if UACs can applied to minors in DHS custody only. Nationality Act). 8 CFR 1003.10(d). demonstrate a material change in Many of the commenters pointed to a Thus, HHS does not believe that the circumstances, they are free to request quote from the court’s decision administrative process of § 410.810 is 810 hearings even if they previously had discussing how the hearing is a ‘‘forum any less independent than the process one that resulted in a negative decision. in which the child has the right to be the Parties agreed to in the FSA. Comment. A commenter noted that represented by counsel, and to have the Comment. A couple of commenters that under the proposed rule, the merits of his or her detention assessed wrote that moving bond redetermination hearing officers cannot make decisions by an independent immigration judge.’’ hearings from EOIR to HHS is on placement or release. To the Another commenter also wrote that the inconsistent with protections for UACs commenter, this limitation does not TVPRA and the HSA do not supersede in the FSA, the HSA, and the TVPRA— make sense because in other child the FSA or allow for inconsistent which protect children from prolonged welfare determinations, judges do make standards, which the commenter detention. decisions about placement and believed would result from the Response. As stated above, HHS reunification for children that are not in implementation of the proposed rule. disagrees with commenters regarding the custody of their parents. This Response. HHS disagrees with the FSA, HSA, and TVPRA. Section 810 commenter also wrote that the commenters who suggested that hearings would provide both practical limitation is inconsistent with the Ninth § 410.810 does not comply with the FSA benefits and due process in a manner Circuit’s interpretation of the FSA and applicable case law. HHS submits consistent with paragraph 24A of the because the court rejected ORR’s that 810 hearings provide substantively FSA, as interpreted most recently by the argument that it has sole authority to the same functions as bond hearings Ninth Circuit. The rule would allow determine placement and make release under paragraph 24A of the FSA, as requests to be made by UACs decisions. expressed by the Flores court and the themselves, or their parents, legal Response. HHS does agree that the Ninth Circuit (e.g., independent review guardians, or legal representatives. HHS original Flores court ruling created a of ORR determinations as they relate to notes that this provision mirrors current bond hearing procedure whose utility a child’s dangerousness and risk of practice, and so there is no reason to relates mainly to providing due process flight and due process protections). The expect a reduction in the number of protections to UACs, but does not Ninth Circuit found that bond hearings UACs receiving 810 hearings, as extend to the ability to order ORR to under paragraph 24A of the FSA ‘‘do compared to those who receive bond release a child. However, that is explicit not afford unaccompanied minors the hearings. Since the Ninth Circuit held in in the text of the Ninth Circuit’s ruling, same rights that may be gained through 2017 that paragraph 24A of the FSA which HHS is now attempting to an ordinary bond hearing,’’ and that a would require bond hearings for incorporate into this rule implementing favorable finding does not entitle determinations of dangerousness and the FSA. minors to release; however, it also stated risk of flight, every child in ORR Comment. A group of commenters that bond hearings provide UACs with custody has been afforded the recognized the distinction between the certain ‘‘practical benefits.’’ Flores, 862 opportunity to request a bond hearing. DHS and HHS provisions relating to F.3d at 867. These benefits include In addition, legal service providers bond hearings, but disagreed that providing a forum in which a child has funded by ORR have explained the proposed 8 CFR 236.3(m) properly the right to be represented by counsel to nature of bond hearings, including implemented section 24(A) of the FSA examine and rebut the government’s procedures to request them, to UACs in light of Flores, 862 F.3d 863. They evidence, and build a record regarding during orientation and legal screenings. restated the court’s discussion of the the child’s custody. Id. 810 hearings The alternative to allowing UACs to important policy interests served by provide UACs with all of these benefits, request such hearings would be to place allowing children a bond hearing. and take place before an independent every UAC in an 810 hearing as a Response. These comments refer to adjudicator in a role similar to default. This would impose a heavy the bond hearings proposed by DHS, immigration judges under current burden on government resources while which are separate and distinct from the practice. In addition, commenters are providing no benefit for the 810 hearings proposed by HHS. HHS incorrect that the immigration judge is overwhelming majority of UACs, most has proposed an independent any more independent than would be of whom are in shelter-level care and adjudication process responsive to the the hearing officer under the 810 therefore are not considered dangerous policy interests served by immigration

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judges in bond redetermination redetermination rulings. Arguably, one access to counsel, the ability for hearings. In 810 hearings, UACs, their of the reasons for inserting paragraph children to confront the evidence and legal representatives, or their parents or 24A into the FSA was to provide exactly establish a record). legal guardians would be able to request the kind of independent review of With respect to comments arguing review of ORR findings regarding a decisions made by the former INS, that the government has a moral duty to child’s danger to self or others, and the which at the time was responsible for keep families together, HHS believes child’s flight risk. The child’s both the care of minors, and for that these comments are really about independent hearing officers would not initiating immigration enforcement other issues addressed in this preamble, have the authority to order release of actions against them. If they were not about the 810 hearings and exceed UACs from ORR custody, and would not sufficiently independent at that time, the scope of this rulemaking, especially have authority to make placement then having independent hearing because neither bond hearings under the decisions. See Flores v. Sessions, 862 officers located within HHS under the FSA nor 810 hearings, in and of F.3d 863, 867 (9th Cir. 2017) proposed rule should also be acceptable themselves, prevent family (acknowledging that a favorable finding now, especially since ORR is not a law reunification. In providing for an in a hearing under paragraph 24A does or immigration enforcement agency, and independent review of ORR not entitle minors to release because 810 hearings are not related to removal determinations of a child’s ‘‘the government must still find a safe proceedings initiated by DHS. The same dangerousness and risk of flight, 810 and secure placement into which a reasoning applies to comments hearings serve a similar function to the child can be released.’’) The UAC would questioning the independence of any bond hearings described by the Ninth be permitted to have representation of appeal of 810 hearing decisions. Just as Circuit in 2017 and thus may serve to his or her choosing at no cost to the the BIA, like immigration courts, is an promote family integrity. But ultimately, government; and the UAC would be able administrative appellate body within ORR has a statutory duty to ensure safe to present oral and written evidence. DOJ, so too in this case another office release of UACs under the HSA and The proposed rule would both provide within the same department would TVPRA, and a similar duty under the these practical benefits while at the serve as the appellate body for 810 FSA. same time streamlining the current hearings. With respect to the comment that process. For example, under the current Comment. Other commenters were immigration judges are best situated to system, if a UAC is moved to a different concerned simply with the change in decide on the questions raised by these venue during the pendency of a bond process. They stated that the NPRM hearings, HHS respectfully disagrees. redetermination hearing, the case must reverses a child’s right to a bond hearing HHS believes that an independent also be transferred to the new venue, and instead creates an agency-run hearing office within HHS, the typically resulting in a delay of weeks. administrative process that poses threats government agency with specific and In contrast, such a case would not be to due process. While most of these relevant expertise in child welfare, interrupted under the proposed rule, commenters did not provide a would be best suited to adjudicate 810 because the proposed rule would justification for their opposition to the hearings. As acknowledged by the Ninth establish a centralized hearing office. proposed change, one commenter stated Comment. Multiple commenters he opposed the jailing of children and Circuit, in Flores custody hearings, even opposed the language proposed under families on moral grounds and favorable rulings do not entitle UACs to § 410.810 because bond redetermination suggested the government focus on release. This is because, under the HSA hearings would be conducted by HHS, keeping families together, alternatives to and TVPRA, the government must still not EOIR, a change that would, in the detention, and full due process. Finally, identify safe and secure placements for opinion of the commentators, remove in addition to the Flores v. Sessions UACs in its care. Id. In light of the the opportunity for a ruling by an justification, several groups wrote that separation of the former INS’s functions independent or neutral arbiter. as a matter of policy, immigration in the HSA and TVPRA, at least one Commenters wrote that HHS would be judges are best suited to rule on UAC court has distinguished ORR custody of the ‘‘judge and jailer’’ of UACs and that bond hearings as they have the relevant UACs, which it termed ‘‘child welfare there would be no meaningful background and knowledge base to custody,’’ from immigration detention. independent review of HHS decisions. understand the situation and determine See Beltran v. Cardall, 222 F. Supp. 3d Commenters argued that immigration the appropriate course of action—or, 476, 488 (E.D. Va. 2016) (internal judges, who are employed by DOJ can alternatively, that HHS lacks the citations omitted) (noting that ORR does serve as neutral arbiters and afford appropriate expertise or experience with not withhold discharge of UACs to UACs a meaningful opportunity to the issues associated with child custody sponsors due to pending removal challenge HHS’ decisions. Commenters or child welfare to conduct such proceedings, but does withhold wrote that the lack of independence hearings. discharge due to child welfare concerns undermines due process protections for Response. HHS is unable to respond as established in the TVPRA; and noting UACs, and for this reason, immigration to comments stating that 810 hearings that Congress intentionally withheld judges should continue to conduct bond would violate due process, but offering from ORR any role in removal redetermination hearings. no specifics. Ultimately the benefit of an proceedings pending against UACs). Response. HHS notes that by its own administrative process is for the agency ORR’s purposes for assessing a child’s terms, § 410.810 calls for an to avoid erroneous determinations, and dangerousness and flight risk relate to independent hearing officer to preside HHS believes that the 810 hearings meet its duty to effect safe releases of over these hearings. This is a departure any relevant due process requirements children, and not to any immigration from what was envisioned in the FSA, for that process. HHS again notes that detention purpose. This makes 810 because in 1997, both INS and EOIR the rule provides substantially hearings fundamentally a review of were located within DOJ. In other ‘‘practical benefits’’ as described by the child welfare determinations, and we words, Flores counsel agreed that Ninth Circuit, which largely described believe such reviews more appropriately immigration judges in EOIR were provision of due process (e.g., an occur within the government agency sufficiently independent from INS, such independent decision-making authority with direct child welfare expertise, that they could make independent bond to review ORR child welfare decisions, rather than in immigration courts.

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Congress itself endorsed HHS’ child Response. Although this comment the children to be dangerous or flight welfare expertise when it transferred appears to be directed to bond hearings risks. responsibility for the care and custody for minors in DHS custody, HHS Comment. One commenter noted that of UACs from the former INS to HHS responds as follows with respect to 810 if the only review of HHS decisions Immigration courts adhere closely to the hearings for UACs in ORR custody. HHS happens within HHS’ apparatus, there is language of the 9th Circuit decision in notes that, as previously discussed, 810 a high chance that due process rights 2017 on bond hearings, including its hearings preserve the substantive will be violated and that Federal courts understanding of the limited scope of benefits of bond hearings as described have struck down similar agency the hearings (i.e., to decide only on by the Flores court and the Ninth actions. questions of dangerousness and flight Circuit. Regarding child advocates, HHS Response. HHS has already discussed risk, not on release or sponsor notes that ORR already appoints child both the procedural guarantees and suitability). Especially with respect to advocates, where they are available, for other practical benefits that 810 issues associated with child custody or victims of trafficking and other hearings would afford UAC sand child welfare, an internal HHS hearing vulnerable children. HHS may establish incorporates those discussions here. office could fulfill the same role as further policies that include children Similarly, HHS has discussed at length immigration judges, only with greater seeking 810 hearings as another category the point about the independence of 810 familiarity and expertise than judges of children for whom ORR should hearing officers and incorporates that trained to adjudicate cases relating more appoint child advocates, but believes it discussion here as well. directly to immigration status and is not possible to mandate child With respect to the commenter’s detention. advocates for all children requesting claim that this rule would violate a 2016 Comment. Several commenters wrote hearings because child advocates are not decision of the Eastern District of that the proposed rule would prolong available in all ORR care provider Virginia,55 HHS notes that the process at detention of UACs, which is detrimental locations. In any case, nothing in the issue in that case was distinguishable to the UACs. Some commenters wrote FSA, or TVPRA, or case law requires from 810 hearings. That case concerned that detention would be prolonged child advocates during the bond or 810 ORR’s release process with respect to a because of the lack of process provided hearings. parent seeking to sponsor her child. In to UACs under the rule and a lack of Regarding the commenter’s suggestion contrast, as already discussed, under the access to counsel. Another commenter that hearings be scheduled within 48 Ninth Circuit ruling in Flores v. claimed that by placing the onus on hours of request, HHS notes that bond Sessions, the purpose of custody UACs—who lack familiarity with their hearings in the immigration court have hearings, and 810 hearings by extension, rights and the immigration process in rarely, if ever, occurred within 48 hours is to decide on the questions of a UAC’s general—to request a redetermination of the initial request. Where there have dangerousness and flight risk—not hearing, the rule will inevitably lead to been special circumstances (e.g., a child release from ORR custody. Considering fewer minors receiving such hearings with an imminent 18th birthday), courts that different context and the ‘‘practical and, therefore, prolonged detention. have made special arrangements to hear benefits’’ for UACs discussed by the Response. HHS notes that 810 such cases. HHS intends that the Ninth Circuit, HHS is confident that 810 hearings as described in the rule are independent hearing officer in 810 hearings satisfy any applicable due modeled substantively after existing hearings will similarly prioritize such process requirements. bond hearing practices. Under current cases. But it would be inappropriate to Comment. Several commenters wrote practice, UACs do not receive automatic apply a one-size-fits-all timeframe on that under the proposed rule UACs do hearings before immigration judges. these scheduling matters, and nothing not have adequate notice of the hearing, Also, like bond hearings, favorable 810 in the FSA or TVPRA includes such time to prepare for the hearing, or access hearing decisions in and of themselves time limits. to the evidence supporting HHS’ do not result in discharge of UACs from Regarding review of placement, determination of dangerousness and/or ORR custody. Also as with bond § 410.810 already states that UACs flight risk. hearings, UACs are entitled to be placed in secure or staff secure facilities Response. HHS notes that under the represented by counsel at no expense to will receive a notice of the procedures rule, UACs have notice of their right to the government. HHS does not intend to under this section and may use a form request an 810 hearing as soon as they use 810 hearings to prolong ‘‘detention’’ to make a written request for an 810 enter a secure or staff secure care of UACs in ORR custody. As indicated hearing. Because the questions at issue provider facility. Further, they have the already, ORR does not detain UACs, in 810 hearings are dangerousness and right to counsel, and counsel has the rather, it provides temporary care and flight risk, 810 hearings are relevant in ability request the child’s full case file custody of UACs and has a general almost all cases only to children in at any time. Even if a UAC who requests policy favoring release to suitable secure, and potentially staff secure an 810 hearing does not have an sponsors. For these reasons, HHS facilities. For purposes of 810 hearings, attorney, ORR will provide the UAC disagrees that instituting the 810 HHS plans to treat RTCs as secure with the information and evidence it hearings as proposed would prolong the facilities. HHS does not consider used as its basis for determining length of time UACs remain in ORR children in shelter or other less dangerousness and flight risk. In HHS’ custody. restrictive placements to be dangerous experience participating in custody Comment. Another commenter wrote or flight risks; if they were, they would hearings before the immigration courts, regarding the practices that should be not be placed there. As a result, such representatives for UACs (almost all adopted to protect due process of children would not require 810 UACs requesting bond hearings have minors in bond hearings including: hearings—though the rule would not had free legal representation), and ORR Appointment of child advocates, preclude such children from requesting have cooperated to ensure hearings take hearings within 48 hours of request by them. Based on HHS’ experiences with place promptly and that all stakeholders child or counsel, and ensuring all bond hearings, except in unusual have access to the evidence provided by minors are informed of their right to circumstances, in these cases ORR request review of their continued would stipulate to the independent 55 See Beltran v. Cardall, 222 F. Supp. 3d 476 detention. hearing officer that it does not consider (E.D. Va. 2016).

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both parties. HHS anticipates that the Government. 8 U.S.C. 1232(c)(5), attempted to rebut. HHS believes it is 810 hearing process would similarly incorporating 8 U.S.C. 1362. closest to current bond hearings to have allow the parties and counsel for the Comment. Several commenters took the burden of persuasion on the UAC, parties to cooperate. exception with placing the burden of and to apply a preponderance of the Comment. Some commenters claimed proof in 810 hearings on the UAC, and evidence standard rather than a clear that HHS is incapable of or not with the standard of evidence and convincing standard. authorized to provide a bond applicable to hearings. Some Requiring UACs to bear the burden of redetermination hearing. commenters expressed concerns that the persuasion under a preponderance of Response. Under the proposed rule, rule would result in a shifting of the the evidence standard allows HHS to 810 hearings would not mimic the burden of proof from the government to balance the equities of UACs in care proceedings of an Article 3 court but prove that the child is a safety or flight with its responsibility under the FSA to would instead serve to review ORR risk to the alien child to prove that he ensure public safety. See FSA paragraph child welfare-based determinations or she is not. The commenters suggest 14 (describing ORR’s general policy regarding dangerousness and flight risk. this is inconsistent with the FSA and favoring release, together with its Child welfare determinations are clearly Flores v. Sessions, 862 F.3d at 867–68. responsibility to ensure the safety of the within the responsibility vested in the Response. HHS believes that it may, UAC and others when it releases a Secretary of HHS under the TVPRA for in this rule, recognize the child welfare UAC). To the extent the courts have the care and custody of UACs. nature of ORR care and custody of UAC. ordered ORR to provide bond hearings Comment. Many commenters wrote As a result, although HHS will not place to UAC under Paragraph 24A of the that without more information about the burden of proof on the government FSA, they have not imposed a standard procedures to protect due process rights in 810 hearings, it has modified the rule of evidence. Rather, one of the cases in 810 hearings, the hearing process to state that the government does bear cited by the Flores district court, Matter does not meet the requirements set out an initial burden to produce evidence of Guerra, stated, ‘‘An Immigration in the APA for agency decision making. supporting its determination of the Judge has broad discretion in deciding Response. disagrees with the UAC’s dangerousness or flight risk. the factors that he or she may consider suggestion that the proposed rule Once the government produces its in custody redeterminations. The provides inadequate information about evidence, the UAC bears the burden of Immigration Judge may choose to give procedures in 810 hearings. As persuading the hearing officer to greater weight to one factor over others, explained in the rule, 810 hearings will overrule the government’s as long as the decision is reasonable.’’ decide on specific questions noted in determination, under a preponderance 24 I & N Dec. at 40. Further, ORR the rule, allow for the introduction of of the evidence standard. custody of UACs is not the equivalent evidence, be subject to a preponderance Comment. Several commenters urged of civil detention or immigration of the evidence standard, result in a HHS to both assume the burden of proof detention; and even if it were, written decision, and subject to appeal. and adopt a clear and convincing determining the proper standard of 810 hearings are not removal standard of proof for bond hearings. proof for Paragraph 24A bond hearings hearings, nor adjudications required by They stated that the clear and or the proposed section 810 hearings statute to be determined on the record convincing evidence standard is the would depend first on the text of any after opportunity for an agency hearing. governing standard in almost all civil applicable statutes and case law.56 The Where matters of immigration detention detentions, with the exception of TVPRA and HSA do not speak to the and removal are involved, this rule immigration detention. Specifically, the issue of bond hearings or their provides for bond hearings for standard of evidence for the government equivalent for UAC in ORR custody, but accompanied children in § 236.3(m). should be clear and convincing, which the relevant case law has applied HHS notes that 810 hearings flow from is a higher standard than preponderance existing immigration court practices HHS’ duty to provide care and custody of the evidence. calling for broad discretion by the to UACs, and the APA is satisfied by Response. HHS will assume the hearing officer in these cases. Finally, HHS’ promulgation of this rule after burden of producing documentation and we also note that the regulation notice and comment. evidence supporting its finding of a specifically provides that UACs will Comment. Commenters wrote that the UAC’s dangerousness or flight risk, have access to counsel for 810 hearings. role of a UAC’s attorney in an 810 which the UAC must then successfully Comment. Organizations noted hearing was unclear. They also rebut before an 810 hearing officer, § 410.810 fails to take the best interest contended that UACs would not have under a preponderance of the evidence of the child into consideration. Another adequate assistance because UACs standard. See Flores v. Lynch, No. organization argued that the hearing would not receive government CV854544DMGAGRX, 2017 WL officer’s work should be reviewed under appointed attorneys to represent them 6049373AsAsA20, 2017, at *2 (citing ‘‘substantial evidence’’ to ensure they during the 810 hearings. Matter of Guerra, 24 I & N Dec. 37 (BIA considered the best interest of the child. Response. HHS anticipates that 2006) to support the proposition that Response. As mentioned above, counsel for UACs would have the same aliens in custody must establish that Congress recognized that HHS has role and ability to represent their clients they do not present a danger to persons expertise in child welfare and is the in 810 hearings as they do for UACs in or property and are not flight risks). most capable agency to make decisions bond hearings. For example, they will Although ORR and EOIR implemented that factor in the best interest of the be able to request their clients’ case Flores bond redetermination hearings by child. In 2008, Congress enacted a files, present evidence, and cross- immigration judges equivalent to bond requirement that children under HHS examine the government’s evidence. In hearings in the adult context (where the custody ‘‘shall be promptly placed in practice, essentially all UACs in bond burden is on the alien to demonstrate hearings have had counsel. they are not a danger or risk of flight), 56 See Jennings v. Rodriguez, 138 S. Ct. 830, 847 Nevertheless, Congress did not require in practice ORR has produced the (2018) (finding in part, with respect to certain adult bond hearings, that nothing in the text of the the government to pay for counsel in evidence supporting its determination relevant statute ‘‘even remotely support[ed]’’ the any circumstance, and that counsel may of the UAC’s dangerousness or level of imposition of clear and convincing standard of be present at no expense to the flight risk, which the UAC has then proof).

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the least restrictive setting that is in the impose the sorts of protocols concurrently with the issuance of those best interest of the child.’’ 8 U.S.C. recommended by the commenters decisions. HHS anticipates that it will 1232(c)(2)(A). In making such recommended by the commenters. Just create a new bilingual form that will placements, ‘‘the [HHS] Secretary may as ORR makes child welfare decisions explain the 810 hearings process, notify consider danger to self, danger to the on an individualized basis, so too does UACs of their rights within the community, and risk of flight.’’ Id. The HHS envision a process by which the administrative process, and allow UACs 810 hearing does not require a formal individual needs of UACs requesting to formally request an 810 hearing—or best interest determination, just as 810 hearings can be accommodated. withdraw a request. If a child speaks a immigration courts and the FSA do not HHS accordingly declines to require all language other than English or Spanish, require a best interest determination for hearings to take place in person, or to HHS will use interpretation services to a bond hearing nor does the FSA require state that video or telephonic convey the form’s meaning and content this. As noted above, the scope of an conferencing is necessarily not child to the UAC. But the timetable for 810 hearing is also limited to the friendly. Neither the FSA nor the appellate decisions proposed by the question of whether the UAC poses a TVPRA impose such a requirement. commenter is not practically feasible, danger or a flight risk, although these Comment. One commenter nor even required by regulations are not the only factors when complained that the proposed rule does governing BIA appeals of bond determining release. ORR takes the best not provide information about the determinations by immigration judges. interest of the child into account, in qualifications for HHS hearing officers. Comment. One commenter argued addition to potential danger or flight Response. As indicated above, HHS that according to his observations of risk, when making a decision about invited comments on whether hearing bond redetermination hearings, the release. officers should be employed by the process is currently disorganized and HHS declines to require the hearing Departmental Appeals Board, either as inefficient, and insufficiently protects officer’s work be reviewed under Administrative Law Judges or hearing UACs. He further contended that that in ‘‘substantial evidence.’’ As already officers, or whether HHS would create the hearings he observed, the explained, HHS will apply a a separate office for hearings, similar to immigration judge disagreed with HHS’ preponderance of the evidence standard the Office of Hearings in the Centers for assessment of the dangerousness of the of evidence for 810 hearings. Medicare & Medicaid Services. But the child. The commenter concluded that Comment. Other comments concerned comments received did not make HHS officials are thus incapable of the appeals process for 810 hearings. responsive suggestions. As a result, HHS providing an adequate bond hearing to Several commenters expressed concern maintains that 810 hearings will be a UAC. about the proposed appeals of HHS conducted by independent hearing Response. Based on the context of this hearing officers going to the Assistant officers to be identified by HHS. comment, the commenter appears to Secretary for Children and Families. Comment. Two commenters wrote have confused bond hearings under One commenter wrote the Assistant that creating a new custody paragraph 24A of the FSA, with Saravia Secretary would create a bottleneck for redetermination process at HHS would hearings. See Saravia v. Sessions, 280 F. cases, but others were concerned that, create a fragmented and uncoordinated Supp. 3d 1168 (N.D. Cal. 2017), aff’d because the Assistant Secretary is a administrative processes resulting in sub nom. Saravia for A.H. v. Sessions, political appointee, the appeal decisions confusion and contradictory results 905 F.3d 1137 (9th Cir. 2018). Saravia would be politicized. between HHS and EOIR. One hearings originated in a case in which Response. HHS believes that directing commenter wrote that in addition to DHS had re-apprehended based on gang all 810 hearings appeals through a bond redetermination cases remaining affiliation certain UACs whom ORR had dedicated office will result in with EOIR, immigration judges should discharged to sponsors. The District efficiencies. Only a limited number of be charged with informing UACs of Court for the Northern District of bond hearings have been requested each their rights, and appeals to the BIA California ordered that, going forward, year—approximately 70 in the past should be heard and decided within 48 any such UACs must be afforded a year—and an even smaller number were or 72 hours of the appeal. hearing before an immigration judge, in appealed. HHS anticipates a manageable Response. As an initial matter HHS which the burden is on the government number of appellate cases in any given disagrees with the commenter that to demonstrate that circumstances year, not a bottleneck. In addition, HHS housing hearings within HHS will result changed sufficiently to justify re- does not believe that it is improper to in a fragmented process. One of the apprehension and referral to ORR vest an appellate decision of this sort in benefits of moving these child welfare custody. ICE counsel, not HHS, the Assistant Secretary, who is an hearings to an independent HHS office represents the government in Saravia Officer of the United States and is to allow continuity of child welfare hearings. In contrast, ICE counsel does therefore legitimately exercises decision-making within the Department. not represent the government in UAC significant authority pursuant to our Moreover, HHS proposed an bond redetermination hearings under laws. See Lucia v. SEC., 138 S.Ct. 2044 independent hearing process to replace the FSA; HHS does. Anecdotal (2018). the current regime of custody hearings information that an immigration judge Comment. Several commenters argued before immigration judges. Immigration disagreed with ORR’s original judgment that 810 hearings should only occur in judges would play no role in informing to release a particular child to a sponsor, person because video or telephonic UACs of their rights regarding 810 in the context of a Saravia hearing, is conferencing is not child friendly and hearings, including information on the insufficient to establish that an that they should follow best practices opportunity for appeal, which are independent hearing officer unaffiliated used in state juvenile custody distinct from immigration enforcement with ORR is unable to make an determinations. proceedings. HHS has, however, appropriate child welfare Response. HHS anticipates that the considered this comment with respect determination. procedures governing 810 hearings to to the 810 hearing process and notes Comment. One commenter objected develop more fully with experience. As that, typically, immigration judges have that the 810 hearings do not provide an written, the rule provides for minimum informed UACs and ORR of their rights opportunity for sponsors to participate requirements. But HHS declines to to appeal bond hearing decisions in the bond redetermination case to

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show that the child has an appropriate administrative courts. Thus, not only do responsibility of an agency not involved sponsor. the statutory authorities support an HHS in immigration enforcement, it does not Response. HHS reiterates that neither administrative process for the hearings make sense for the immigration courts— bond hearings nor the proposed 810 that will affect HHS legal custody, but which are primarily involved in aspects hearings make determinations on also, even if the statutes could be read of such immigration enforcement—to release, let alone release to particular to allow EOIR to retain authority over retain jurisdiction. sponsors. Sponsor suitability the UAC bond hearings, the Government BIA precedent is not dispositive on determinations are within ORR’s nonetheless has the authority to the question of whether immigration statutory mandate, and are a separate implement the FSA by moving the judges may review custodial question from the analysis done in the hearings to an HHS framework. The determinations of ORR. While the current bond hearings or the proposed language of the HSA shows that district court and Ninth Circuit may 810 hearings. As a result, potential Congress knows how to preserve DOJ have altered this ruling as it pertained sponsors need not always be afforded authorities where it chooses to do so. In to implementation of the FSA, a final the right to participate in 810 hearings. the rule of construction governing rule that provides the substantive Having said that, UACs are frequently immigration benefits, Congress stated elements and practical benefits of bond sponsored by their parents, and the rule that ‘‘Nothing in this section may be hearings, especially protection of UACs’ allows parents or legal guardians to construed to transfer the responsibility due process rights, settles the matter as request 810 hearings on their children’s for adjudicating benefit determinations it relates to HHS custody of UACs. DHS behalf, just as they are able to request under the Immigration and Nationality immigration detention is a separate matter, and this rule provides for bond bond hearings on their children’s behalf Act (8 U.S.C. 1101 et seq.) from the presently. In these situations, the rule hearings for minors in DHS custody. authority of any official of the would not prevent parents from Comment. Commenters argue that it Department of Justice, the Department participating in the hearings. For would be inefficient and more of Homeland Security, or the example, they could testify or present expensive to create a new type of Department of State.’’ 6 U.S.C. 279(c). evidence, or could argue on behalf of tribunal system for UAC bond No similar language exists for bond their children. redetermination cases. Comment. Some commenters hearings. Such a discrepancy shows that Response. Although it would arguably disagreed with the agency’s analysis where Congress wished to preserve DOJ be less expensive for HHS to preserve that EOIR lacks the authority to hear authority for UACs, it did so explicitly. UAC bond redetermination hearings in UAC bond redetermination hearings In addition, Congress has recognized the immigration court system rather because Congress did not authorize that HHS would assume responsibilities than creating a new process within EOIR to hear these cases and because that previously resided within the HHS, there are at least two efficiencies release authority for UAC rests solely Department of Justice. See 6 U.S.C. that would result from a new with HHS. These commentators 279(f)(1) (authorizing Federal officials to independent hearing process. First, supported their objection by citing to perform the functions, and exercise the removing these cases from immigration the Ninth Circuit’s analysis of these authorities under ‘‘any other provision court dockets would allow the courts to issues. One commenter noted that the of law,’’ that were ‘‘available with focus on cases within their expertise BIA has held that immigration courts respect to the performance of that and authority (i.e., immigration can rule on UAC bond redeterminations function to the official responsible for detention and removal hearings). It is cases. the performance of the function well known that the immigration courts Response. HHS disagrees with the immediately before the effective date’’ face an extreme backlog of cases, with commenter’s conclusion regarding the of the HSA). Finally, even assuming many aliens waiting months if not Ninth Circuit’s analysis as it pertains to commenters are correct in their analysis longer for their hearings. The sudden the bond hearing requirement under (which HHS disputes), binding HHS addition of UAC custody hearings in paragraph 24A of the FSA (for the (and EOIR) to the commenters’ reading 2017, which the immigration courts reasons stated above, as well as in the of Paragraph 24A would mean that the prioritized in terms of scheduling, only NPRM). In addition, Congress also has Government is indefinitely bound by a added to the already heavy caseload already determined that HHS is the decades-old consent decree—a consent placed on the immigration courts. agency with expertise in child-welfare decree signed by an Administration no Second, placing 810 hearings within an issues, including in making release longer in office, that can never be independent HHS office would also determinations that are in best interest altered, even through Congress’ promote the speed of adjudications and of the child. Immigration judges—sitting sanctioned method of adopting binding appeals through the development of in a different Department of the policies through notice and comment specific expertise, and through Executive Branch, and generally able to rulemaking under the Administrative centralization. Currently, bond hearings release individuals ‘‘on bond’’ on their Procedure Act. HHS does not believe take place around the country, in own recognizance, are unfamiliar with such an unyielding and indefinite hold courtrooms with varying rules and the HHS system and do not always on agency policy-making, across scheduling demands. By centralizing all recognize the limits of their authorities Administrations, can arise from a 810 hearings in an independent office (i.e., to determine only dangerousness or consent decree, especially where, as within HHS, protocols would be risk of flight, without necessarily being here, Congress abolished the signatory standardized. In addition, the able to release a child for whom a to the Agreement and divided its independent hearing office would suitable custodian has not yet been responsibilities among new Parties. accrue specialized expertise and at least determined). While the Ninth Circuit Decisions on whether a minor must be in theory be able to make adjudications itself recognized that the ‘‘bond maintained in HHS custody solely due more quickly and effectively than hearing’’ under FSA paragraph 24A to his or her danger or risk of flight are immigration judges who remain largely would not result in a dispositive release properly within the purview of the very unfamiliar with ORR policies and decision, this limitation on the authority agency charged with making child- practices. of immigration courts is not a limitation welfare determinations. Once Congress Comment. One commenter asserted typically experienced with such made clear that UACs are to be the that 810 hearings fail to protect rights

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under the INA and international C. Other Comments Received the severity of the situation that they are fleeing. Several commenters asserted customary law. 1. Detention as Deterrent Response. As noted above, the that the families who would be affected Public Comments and Response purpose of this final rule is to by this rule have grounds for asylum, citing USCIS data showing that nearly promulgate final rules implementing the Comments. Many commenters stated 88 percent of families in its detention FSA, and HHS believes the 810 hearing the Government failed to provide data and/or methodologies used to make an centers have exhibited credible fear. The process does so. HHS is not aware of commenters stated that the rules set any provision in the INA or customary assessment regarding detention as a deterrent, and multiple others stated forth in the NPRM will not deter these international law that would preclude that detention has been shown to be an individuals who are trying to save their this process and so it does not accept ineffective deterrent. Several lives and the lives of their children. that 810 hearings are governed by commenters stated that while harsher Commenters suggested that by ignoring customary international law. The enforcement may impact migration violence and persecution as a migratory commenter appears to suggest that there flows, so do push factors, something for cause, DHS evades its responsibilities as are requirements of impartial custodial which they say the proposed rule did a signatory to the 1967 Protocol Relating review under customary international not account. to the Status of Refugees; increases law, but it is not clear what the Various commenters asserted that likely litigation regarding protection of commenter’s argument is. Without using detention of families or asylum seekers; risks returning asylum taking a position on this assertion and individuals as a way to deter migration seekers to persecutory harm; and risks as HHS already stated, 810 hearings will is unlawful. One commenter added that undermining confidence in the rule of be conducted by independent hearing deterrence is a concept that applies in law in the United States by both asylum officers. the criminal justice system, not the civil seekers and U.S. citizens. immigration context. Commenters Several commenters mentioned that Comment. One commenter wrote that pointed out that the Supreme Court has the migrants have no or minimal the proposed 810 hearings ignore the ruled that civil detention may not be knowledge of U.S. immigration laws, interest that state courts may have in the used as a mechanism for deterrence and while others noted that the policy is custody of a child in the state, that detention used as a deterrent ineffective even if migrants are aware of particularly if state courts had abandons the protections of the due the consequences of entering the United previously been involved in the child’s process clause of the Fifth Amendment. States illegally. life through, for example, a custody A few commenters insisted that the One commenter stated that the NPRM hearing. government must show the justification shows the government is struggling to Response. State courts have no for detaining immigrants outweighs comply with the FSA and is attempting to alter the standards agreed upon by jurisdiction over UACs, who are in countervailing liberty interests and that detaining asylum seekers to deter other the parties in the FSA. The commenter Federal custody, other than that which stated that the FSA was focused on ORR specifically consents to in writing. migrants does not meet the standard. A few commenters stated that detention as establishing procedures and conditions See, e.g., FSA at paragraph 24B that meet child welfare principles, but (permitting UACs to seek judicial a deterrent has been both proven ineffective and decried as unlawful by the purposes demonstrated in the NPRM review of placement decisions not in a Federal judge.57 Others stated that are in direct contrast to the FSA’s intent. state court, but rather in the United when the previous administration The commenter asserted that the States District Court with jurisdiction attempted a similar policy of detaining proposed rule cannot be interpreted as and venue). See also Perez-Olano, et al. families for the purpose of deterring a good faith attempt to be consistent v. Eric Holder et al., Case No. CV 05– future migration, a Federal court issued with the FSA’s provisions. 3604 (C.D. Cal., Dec. 14, 2010) (creating a preliminary injunction blocking the Commenters also stated concern with a uniform notification process for practice. family ‘‘incarceration.’’ For example, notifying UAC in Federal custody of Multiple commenters stated that DHS one commenter stated that incarceration their right to seek Special Immigrant makes a flawed assertion in the of families is a cruel response to the Juvenile status; establishing procedures proposed rule by stating that a 20-day humanitarian crisis at the border and for the Federal Government and UAC limit on family detention imposed as will exacerbate the trauma that and UAC representatives to follow for part of a July 2015 court ruling survivors of violence have endured. The filing specific consent requests to ‘‘correlated with a sharp increase in commenter stated that many women and children arriving at the border from juvenile court jurisdiction). family migration.’’ These commenters argued that available evidence indicates the Northern Triangle are fleeing terrible Changes to Final Rule the increase in migration is more violence at the hands of intimate directly related to root causes of poverty partners, criminal gangs, or police or HHS has changed the final rule text to and violence in migrants’ home other authorities, who perpetrate these make clear that once the UAC has made countries and that the NPRM acts of violence without any a claim that s/he is not dangerous or a erroneously presented correlation as accountability. risk of flight, HHS bears the initial causation. Response. As DHS specified in the burden to produce evidence supporting Numerous commenters cited research proposed rule, the primary objective of its determination of dangerousness or and testimonials indicating that the the rule is to implement the FSA in flight risk; however, the UAC, who may migration trend from the Northern regulations, thereby terminating the introduce his or her own evidence, Triangle is due to high rates of violence FSA; it is not to utilize detention as a bears the burden of persuading the in that region. They cited statistics deterrent to migration. Congress has independent hearing officer to overrule about significant danger accompanying authorized DHS, as a general matter, to HHS, under a preponderance of the travel to the United States to underscore detain aliens during the immigration evidence standard. enforcement process to ensure that, at 57 R.I.L.R. v. Johnson, 80 F. Supp. 3d 164, (D.D.C. the conclusion of that process, they can 2015). be removed if so ordered. In some

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circumstances, detention is at the maintain the existing list of relatives to regarding continuing efforts to release discretion of DHS and, in others, whom it will release children. minors and reunify families for the detention is mandatory. Detained cases Many commenters stated that the duration of a child’s time in custody to are handled by the immigration courts proposed rule is contrary to the § 410.201(f). Another commenter wrote on a priority basis, and DHS’s policy principles underlying the FSA, namely that the possibility of indefinite preference is to be able to exercise its that immigrant children are uniquely detention is exacerbated by the use of discretion to maintain custody in vulnerable and, thus, should be released permissive and future-tense verbs appropriate family unit cases pending from detention as quickly as possible. (‘‘may’’ and ‘‘will’’) rather than the the completion of removal proceedings. These commenters expressed concern mandatory verbs found in the FSA This rule will enable DHS to maintain that the proposed rule fails to prioritize (‘‘shall’’ and ‘‘must’’). This commenter family unity while also enforcing the community placement, and they argued recommended retaining the verbs used laws passed by Congress, including that elimination of the 20-day limitation in the FSA. This commenter also wrote appropriately exercising the on detention conflicts with the FSA’s that the ‘‘or is otherwise appropriate’’ enforcement discretion Congress has general policy favoring release as clause should be stricken from vested in DHS. To the extent that the ‘‘expeditiously as possible’’ without § 236.3(h) because it provides an effect of enforcing the laws passed by ‘‘unnecessary delay.’’ Many commenters opportunity for indefinite detention. Congress is to deter some migrants from wrote that the proposed rule constitutes Many commenters stated that the making the journey to the United States, a modification of the FSA, rather than TVPRA did not justify changing the that effect is merely a result of enforcing a codification of it, and could not be conditions imposed by paragraph 14 of the laws currently in place. used to justify termination of the FSA. the FSA with regard to accompanied Commenters misinterpreted DHS’s These commenters noted that the FSA’s minors, because the TVPRA only position concerning the operational detention limitation applies to both addresses UACs and, in any event, is consequences of the FSA. In particular, accompanied and unaccompanied not inconsistent with the FSA. the absence of state licensing for FRCs children under a 2015 District Court Many commenters expressed concern has prevented the Government from ruling. that indefinite detention would violate maintaining custody of many families Several other commenters stated that detained children’s human rights or for a period of time sufficient to resolve the proposed rule violates the FSA’s civil liberties. These commenters their immigration cases, including requirement that children be placed in asserted that detaining migrants in order expedited removal proceedings. This the least restrictive setting, along with to deter migration violates international often leads to the release of families, additional Federal laws. One prohibitions on torture. One commenter many of whom abscond, adding to a commenter stated that the least stated that prolonged detention of large alien fugitive backlog, as discussed restrictive setting requirement should be asylum seekers violates Article 31(1) of elsewhere in this rule. DHS has interpreted consistently with similar the UN Refugee Convention. Another encountered cases where this language in the Individuals with commenter stated that detaining confluence of the FSA and its Disabilities Education Act (IDEA), children for prolonged periods of time which requires that students with violates international law protecting the interpretation have created an incentive disabilities be placed in the least dignity of the family unit as well as for adults to bring minors to the United restrictive appropriate setting possible. guidance from the United Nations that States with the aim of securing prompt The commenter wrote that the IDEA and children should not be detained due to release from custody. That being said, the FSA are both intended to prevent migration status. Another commenter consistent with the view expressed by disadvantaged children from being wrote that the indefinite detention of many commenters, DHS acknowledges taken advantage of by those in power, children violates Articles 37, 22, and 9 that the incentive structure informing and that the FSA’s ‘‘least restrictive of the United Nations Convention on the the decision of migrants whether to setting’’ language should therefore be Rights of the Child. One commenter travel to the United States is complex interpreted to prohibit detention in most wrote that the proposed rule should and multifaceted, and that potential circumstances. Another commenter explicitly mandate consideration of the detention for criminal or civil violations stated that indefinite detention of best interest of the child in order to of U.S. law is not the only consideration children would violate the Child Abuse comply with these provisions of at issue. This rule does not purport to— Prevention and Treatment Act, a Federal international law. This commenter also and indeed, cannot—address all law which prohibits caretakers of stated that indefinite detention violates potential incentives for migrants to children from causing, or failing to Article V of the American Declaration of travel to the United States, including mitigate serious imminent threats of, the Rights and Duties of Man. ‘‘push factors’’ such as those described physical and emotional harm. Still other Many commenters expressed concern in the comments. commenters wrote that indefinite that prolonged or indefinite detention DHS declines to amend the proposed detention runs contrary to the spirit of would negatively impact detained regulatory text in the final rule in the Family First Prevention Services children’s health, growth, and response to these public comments. Act, a Federal law which attempted to development. These commenters stated 2. Indefinite Detention reduce the number of children in that, while there is no safe amount of congregate settings. These commenters detention, harms to children from Public Comments and Response stated that indefinite detention detention increase as the length of Comments. Many commenters stated contradicts best practices, state policy, detention increases. They argued that that they were concerned that minors, and Federal policy in the criminal the conditions in existing detention particularly accompanied minors, could justice, juvenile detention, and child facilities are inappropriate for, and be detained indefinitely under the welfare areas. dangerous to, children and do not proposed rule. They requested that DHS Other commenters recommended provide sufficient medical and maintain a fixed detention limitation for specific changes to the language of the developmental services to children. children and that families with children rule to avoid the prospect of indefinite Specific concerns were raised with be released rather than detained. Many detention. One commenter respect to the mental health of children commenters also requested that DHS recommended adding language including the prospect that detention

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could cause depression, suicidal they qualify for release on recognizance, individuals in those facilities can exit ideation, and anxiety. Many bond, or parole. them. Doing so, however, may give rise commenters stated that indefinite Aliens subject to final orders of to arrest given that those in the facilities detention could cause behavioral removal may remain in custody until are subject to apprehension under the changes in children after release and removal can be effectuated. For those immigration laws and, in many inhibit their educational attainment and aliens detained pursuant to INA 241, instances, mandatory immigration success in life. Several commenters this includes a presumptively detention. worried that prolonged detention may reasonable period of 180 days after a Bond determinations will be made cause ‘‘toxic stress,’’ and one final order of removal has been issued, pursuant to the ordinary statutory and commenter stated that the trauma and thereafter, the alien must generally regulatory standards, under which an caused by detention could require years be released absent a significant alien is released if he can establish he of psychotherapy and medications. likelihood of removal in the reasonably is not a flight risk or danger. See INA Another commenter stated that, foreseeable future (in compliance with 236(a). The rule here would not alter although parents can typically buffer current law and regulation). such authorities governing custody, but children from stressful situations, when Detention remains an important tool instead would allow the determination the parent is also experiencing intense to ensure that proceedings are of whether to detain a family to be made stress, the parent’s ‘‘buffering capacity’’ completed. EOIR found that for under all appropriate legal authorities, may be undermined and lead to completed cases from January 1, 2014, and not under the FSA system through additional harm to the child. through March 31, 2019 that started at which a different set of rules applies to One commenter expressed concern an FRC, 43 percent of family unit the minor and another to his parent(s) that prolonged family detention would members were issued final orders of even though they are being held force children and their families to give removal in absentia out of a total of together in the same place. up their culture. This commenter 5,326 completed cases. DHS OIS has DHS has added new language at described a state’s experience with found that when looking at all family § 236.3(j)(4) to state clearly that paroling Native American assimilation and unit aliens encountered at the minors in DHS custody pursuant to Japanese-American internment and the Southwest Border from FY 2014 through section 235(b)(1)(B)(ii) of the INA or 8 negative effects these events had on FY 2018, the in absentia rate for CFR 235.3(c) who do not present a those communities and noted that it completed cases as of the end of FY safety risk or risk of absconding will does not want the United States to 2018 was 66 percent. As a result, the generally serve an urgent humanitarian return to this past practice of childhood authority to detain minors in family reason. DHS adds that it may also detention. units continues to be an important consider aggregate and historical data, Finally, one commenter expressed component of immigration enforcement. officer experience, statistical concern that indefinite detention of But ‘‘indefinite detention’’ is not information, or any other probative immigrant children could lead to consistent with DHS’s mission. information in determining whether indefinite confinement of U.S. citizen DHS reiterates that while this rule detention of a minor is required to children abroad because the proposed would allow DHS to hold non-UAC secure the minor’s timely appearance rule would damage the reputation and minors with their parents or legal before DHS or the immigration court or credibility of the United States abroad. guardians at FRCs for more than 20 Response. This rule does not days, this intent does not clash with the to ensure the minor’s safety and well- contemplate or authorize ‘‘indefinite intent of the FSA. The FSA provides being or the safety of others. detention’’ of anybody, much less that minors subject to its provisions will Furthermore, current limitations on bed minors. ‘‘Indefinite detention’’ is all be transferred to a licensed program space in FRCs are significant and will inconsistent with DHS’s mission. The until they can be released. FSA likely mean that, as a practical matter, purpose of immigration detention is to paragraphs 12A, 14, 19. The provisions unless the amount of bed space is effectuate removal and to keep custody of this rule will allow properly managed significantly expanded or the number of over an alien while a decision is made FRCs to qualify as licensed, non-secure families drops dramatically, families on whether removal should occur. If the facilities once its terms go into effect, that have established a credible fear and alien establishes that she merits relief and the FSA itself provides no specific who are not a flight risk or danger will from removal, she will be released at the time limit for a minor to be in a licensed often be released from detention. For a end of the proceedings; if not, she will program. That ICE generally does not discussion release of minors from DHS be removed. That is not ‘‘indefinite hold family units in FRCs beyond custody, please see Section B.10., detention’’ because it has a definite end approximately 20 days is a result of a Release of Minors from DHS Custody. point, namely, the end of proceedings district court opinion holding that ICE’s Changes to Final Rule and removal itself. See Jennings v. FRCs, as they currently exist under law, Rodriguez, 138 S. Ct. 830, 846 (2018); are not appropriately licensed and are DHS is amending § 236.3(j)(4) to state Demore v. Kim, 538 U.S. 510, 529 not ‘‘non-secure.’’ Once this rule that paroling minors in DHS custody (2003). ICE notes that the majority of permits properly managed FRCs to pursuant to section 235(b)(1)(B)(ii) of minor and family unit removals involve qualify as licensed, non-secure facilities, the INA or 8 CFR 235.3(c) who do not countries in the Northern Triangle, and their operation will be consistent with present a safety risk or risk of removals are normally effectuated the operation of licensed programs absconding will generally serve an promptly in these countries. DHS notes under the FSA. Importantly, as urgent humanitarian reason. that minors and family units are not explained previously, FRCs are 3. Alternatives to Detention likely to face long periods in detention designed to be a safe location where because immigration proceedings families can be together in an Public Comments and Response involving detained family units and environment that will foster their Comments. Many commenters minors are placed on a priority docket children’s development during the proposed alternatives to keeping family by EOIR. Family units and minors can pendency of immigration proceedings. units or unaccompanied minors in also benefit from release during the They are not secure facilities—which detention. Several commenters pointed pendency of removal proceedings if means that, while it is discouraged, to the Juvenile Detention Alternatives

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Initiative (JDAI) as evidence that the Vera Institute of Justice as support. for showing up at their hearings. The alternatives to detention are effective Still other commenters presented commenter also suggested that aliens and preferable over detention. alternatives to detention. Some who appear at their hearings should also Numerous commenters recommended commenters stated DHS should more have their immigration cases looked use of the Family Case Management heavily rely on NGOs, non-profits, and upon more favorably. Program instead of detention, because religious organizations to provide Finally, commenters cited to a report the program is significantly cheaper and necessary services, including housing, on a non-profit organization’s case is effective at ensuring that a family to immigrants and ensure that they management program, the Family appears for their immigration attend their immigration hearings. One Placement Alternatives (FPA), piloted in proceedings. commenter focused on foster family 2015. The commenters present the FPA Commenters compared ATD programs placement, stating that it would provide as a human-centric alternative to such as the Intensive Supervision better outcomes for youth than detention through a holistic social Appearance Program (ISAP) at $4 per detention or large shelter placement. service approach. The report highlights day per person and the Family Case Several commenters stated that DHS the benefits of community-based Management Pilot Program (FCMP) at should release more aliens on bond, or services and cites several examples of approximately $36 per family per day to if the aliens lack any indicia of being a immigrants who were able to navigate the cost of detention, which they cited flight risk, on their own recognizance. the asylum system better with the help as approximately $319 per individual Several commenters supported of an assigned case manager. The report per day in FY 2019. One commenter electronic monitoring as an alternative also annexes several findings directly estimated that the costs of detention for to detention. Other commenters, related to compliance with removal a family of two in an FRC for 40 days, however, expressed concern that proceedings, discusses the cost- the average time to process an electronic monitoring can be effectiveness of running the program individual on the detained docket costs stigmatizing for aliens and interfere in × × and recommends its adoption on a would be $25,520 ($319 2 people 40 daily life activities, and stated that such larger scale. days). The commenter estimated the monitoring, while preferable to Response. DHS agrees with the costs of ISAP for the head of household detention, should only be used as a last commentators that ATD has an at $3,008 for 752 days, the average time resort, such as when the alien is a flight important role to play as an effective to process an individual on the non- risk, presents a safety concern, or × compliance tool for some aliens. DHS detained docket ($4 752 = $3,008). otherwise would be a candidate for The commenters noted that accordingly uses ATD in some cases, secure detention. consistent with resource limitations, participants in the FCMP had a 100 One commenter expressed support for percent attendance record at court and will continue to do so. But ATD is a program that includes a combination only a partial solution, not a complete hearings and a 99 percent rate of check- of electronic ankle monitors, voice- 58 answer. Congress has authorized, and in ins and appointments with ICE. The recognition software, and unannounced commenters also stated that the FCMP some instances required, immigration home visits, and stated that similar detention as a tool for fulfilling ICE’s would have fewer negative impacts on programs have been found to be the well-being of minors when mission. Although ATD can be used as affordable and highly effective. One an effective compliance tool, unlike compared to detention, and that the commenter, citing a GAO report,59 Program resulted in, among other detention, such alternatives generally do noted that a similar program resulted in not provide a means to effectively things, lower return-rates of children over 99 percent of aliens with a into foster programs and lower rates of remove those who are illegally present scheduled court hearing appearing at and have a final order of removal. abuse, neglect, or other crimes when their scheduled court hearings, and compared to minors and families in Moreover, DHS does not have the more than 95 percent of aliens with a detention. resources to keep aliens on ATD scheduled final hearing appearing at Relatedly, several commenters stated throughout proceedings, or to locate and that DHS should utilize a community- their final removal hearing. arrest those who abscond. Enrolling Several commenters stated that based, case-management program as an aliens in ATD instead of detaining and providing needed services to alien alternative to detention. The removing them also contributes to the families and minors would help ensure commenters stated that such a program growing immigration court backlog. their attendance at court hearings. should provide case management Many of those in the program are services, facilitate access to legal Several commenters stated that DHS enrolled for years (as opposed to an counsel, and facilitate access to safe and should provide legal orientation average length of stay in detention of affordable housing. They cited studies programs to aliens to help ensure their 30–40 days). ATD thus cannot showing that a sense of belonging in appearance at hearings, as well as completely replace immigration schools and neighborhoods is a strong inform families of their legal rights and detention. factor for positive health outcomes for obligations. These commenters ICE is, however, currently utilizing immigrant and refugee families. The expressed a belief that the high rate of ATD for certain qualified family units. commenters also stated that such a in absentia removal orders is because The current ATD—Intensive program has been shown to asylum seekers lack basic information Supervision Appearance Program substantially increase program about the immigration process. Another (ISAP) is a flight-mitigation program compliance, without the extensive use commenter suggested that the that uses technology and case of electronic monitoring, and cited pilot government provide the families and management tools to facilitate programs conducted by the Lutheran minors with case workers, compliance with release conditions, Immigration and Refugee Service and transportation to and from their court appearance, and final orders of hearings, and a small financial incentive removal while allowing aliens to remain 58 Citing the U.S. Dept. of Homeland Security in their community—contributing to 59 Office of Inspector General, Rep. No. OIG–18–22, Report to Congressional Committees, their families and community U.S. Immigration and Customs Enforcement’s Alternatives to Detention: Improved Data Collection Award of the Family Case Management Program and Analyses Needed to Better Assess Program, organizations and, if necessary, Contract (2017). U.S. Government Accountability Office, Nov. 2014. wrapping-up their affairs in the United

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States—as they move through delinquent and committed to the daily cost of detention, immigration immigration proceedings. corrections facilities, in turn damaging judges process the cases of those in ATD–ISAP may be appropriate for prospects for future success. The JDAI’s custody much faster than those on the aliens who are in some stage of removal core strategies include collaboration non-detained docket 60 meaning that the proceedings and released from DHS with juvenile court officers, prosecutors ultimate gap in cost is often custody pursuant to an order of release and defense counsel, and objective risk considerably smaller than appears when on recognizance, an order of assessment of the youth to determine looking only at the per day costs. supervision, or a grant of parole or whether home confinement and self- Indeed, in some circumstances where a bond, e.g., individuals considered not to reporting instead of detention will non-detained case takes unusually long, be a danger to the community or a high assure compliance with court detention can be more cost effective in flight risk. The ATD–ISAP contractor appearances. JDAI is essentially a flight the long run even though the per day provides case managers who supervise mitigation tool for the penal system cost is higher.61 participants utilizing a combination of with some similarities to ATD–ISAP in Additionally, in the long run, the home visits, office visits, alert response, administrative removal proceedings. most important factor that determines if court tracking, and technology. Case Accordingly, the JDAI is not suitable for an alien is removed when a final order managers also provide referrals to a managing family units and/or juveniles is issued is whether the person is in multitude of social services. Because of who are not otherwise involved in the detention when this occurs. If an alien the nature of the program, juveniles penal system. is not detained at the time, in many cannot be participants, but family units Commenters referenced the FCMP as cases ICE will have to expend (at least one adult and minor children) a much cheaper alternative than significant resources to locate, detain, can be enrolled via an adult Head of detention. While the ATD–ISAP and subsequently remove the alien in Household. Of the approximately program has some elements of a case accordance with the final order. 100,000 participants currently enrolled management program, the FCMP itself is Regarding commenters’ reference to in ATD–ISAP, about 50 percent are a program no longer used by DHS. The the non-profit organizations’ Family family units. FCMP was launched by DHS in early Placement Alternatives program, such a Data maintained by ICE show that 2016, as an alternative to detention for program, as with the FCMP, is not historically family units on ATD tend to family units who illegally entered the suitable for the purpose of effectuating abscond at a higher rate than non-family United States with a credible fear that removal. unit participants. ICE considers an might qualify them for protection from absconder from the ATD program to be removal. The FCMP, which was Changes to Final Rule an individual who has failed to report, implemented in only a few cities, aimed DHS declines to amend the proposed who has been unresponsive to attempts to promote compliance with regulatory provisions in the final rule in by the Government to contact him or immigration obligations for Heads of response to these public comments. her, and whom the Government has Household who are a low public-safety 4. DHS Track Record With Detention been unable to locate. In FY 2018, the risk and who were residing or intending absconder rate for family units was 30 to reside in those few cities, and who Public Comments and Response percent, significantly higher than the 19 were not considered appropriate for Comments. Several commenters percent absconder rate for non-family traditional ATD programs or who were discussed DHS’s track record with unit participants. Because ICE lacks not eligible for placement in FRCs, e.g., detention. In general, comments focused sufficient resources to locate, arrest, and pregnant or nursing women, or mothers on the following areas: Inadequate remove the tens of thousands of family with young children. Under the conditions at existing facilities; and units who have been ordered removed program, families were given a problems hiring staff in remote DHS but are not in ICE custody, most of these caseworker who helped educate them facilities. aliens remain in the country, on their rights and responsibilities, and Multiple commenters stated that ICE- contributing to the more than 564,000 helped families settle in, assisting with run facilities have a history of poor fugitive aliens as of September 8, 2018. things like accessing medical care and conditions and compliance issues and Such at-large apprehensions present a attorneys, and ensuring they made it to stated that ICE could not be trusted to danger to ICE officers, who are the their court appearances. detain families in adequate and safe victims of assaults in the line of duty, ICE terminated the FCMP in June conditions. Some commenters and significantly increases the 2017, after completing a top-down contended that governmental facilities operational burden of effectuating review of the pilot year (January 2016— had failed to provide adequate access to removal. Therefore, although ATD–ISAP June 2017), based on the finding that the care and safety for children in DHS and is useful and indeed used by ICE for FCMP cost around $38.47 per family, HHS custody, even though those many families, it is not a complete per day (or roughly $16.73 per facilities were presumably operating in answer for the enforcement of individual), while traditional ATD— accordance with current FSA immigration law with respect to family Intensive Supervision Appearance stipulations. These commenters stated units. Program (ISAP III) cost ICE The Juvenile Detention Alternatives approximately $4.40 per individual, per 60 See Trac Immigration, Table 1. Pending Cases Initiatives (JDAI), was developed as a day. FCMP subcontracted out many of and Wait Times Until Hearings Scheduled by Court pilot project in the early 1990s by a its case management services to NGOs, Location, Report date June 8, 2018 https:// private philanthropy based in non-profits and religious organization trac.syr.edu/immigration/reports/516/include/ Baltimore, and has since expanded to which drove up the average cost per table1.html. 61 See Congressional Budget Justification FY over 300 jurisdictions. The purpose of participant. ICE concluded that money 2018—Volume II, U.S. Immigration and Customs JDAI is to reduce reliance on local it would save by discontinuing the Enforcement, page 50, ‘‘An average daily rate for confinement of youth involved in the FCMP could be better used by instead family beds can be calculated by dividing the total penal system, based on the premise that supporting other ATD services for more funding requirement of $291.4 million by the projected average daily population (ADP) of 2,500 placing juveniles in locked detention families. for a rate of $319.37.’’ https://www.dhs.gov/sites/ pending court hearings increases the While it is true that per day, any ATD default/files/publications/DHS%20FY18%20CJ odds that the child would be found program could be less expensive than %20VOL%20II.PDF.

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that given the less rigorous standards and to July 2018 reports filed in Federal licensed under this rule (and under the and oversight envisaged by the court that allegedly documented unsafe FSA) are the FRCs. Thus, these licensing proposed regulations, these breaches are and unhealthy conditions in DHS-run requirements—and the public reporting likely to continue and proliferate if the facilities where children were housed of inspections—do not apply to DHS’ FSA is weakened. after being separated from their parents short-term holding facilities (such as According to these commenters, a at the border. CBP facilities). DHS notes, however, as report by Human Rights First 62 Commenters also pointed out that in described above, that CBP facilities are supports their contention that ICE-run January 2016, the Pennsylvania subject to inspection and monitoring by detention facilities historically and Department of Human Services revoked outside entities. routinely fail to meet even their own the child care license of the Berks DHS also disagrees with some of the minimum standards of care. Some County Residential Center because DHS commenters’ specific assertions. Many commenters reported that visits to was found to be using its license of the commenters made broad, family detention centers reveal inappropriately. Yet, the facility generalized allegations that ICE has discrepancies between the standards continued to operate for a year with a abused children in detention, failed to outlined by ICE and the actual services suspended license. According to one of uphold its own Family Residential provided, including inadequate or the commenters, the Berks County Standards, and generally failed to inappropriate immunizations, delayed facility amassed an atrocious record of provide care and safety to the minors in medical care, inadequate education health concerns, inadequate medical its custody, among other issues. Even services, and limited mental health attention, alleged sexual misconduct, though those commenters cited to services. and other harmful conditions because studies such as the one provided by Multiple commenters referenced a there was no proper oversight. Human Rights First 65 or the American Response. DHS agrees with the letter from two DHS physicians to the Academy of Pediatrics 66 and asserted commentators that it is critical that Senate Whistleblowing Caucus, in that these studies supported their conditions in DHS facilities live up to which the experts stated that after allegations, DHS review of these studies applicable standards, particularly when conducting ten investigations over four uncovered no specific instances of it involves the treatment of children. years at ICE family detention facilities, abuse, neglect, or failure to abide by That is the whole point of the standards. they had concluded that children standards provided with enough detail The proposed rule here would do housed in ICE family detention centers for DHS to investigate. For those nothing to weaken them. generalized allegations that did not are at high risk of harm, due to serious To further emphasize its commitment provide details sufficient for DHS to compliance issues such as lack of timely to its standards, DHS is adding substantiate the allegations, DHS cannot access to medical care, lack of sufficient regulatory text to confirm that it will respond to the commenters effectively. medical staffing, inadequate trauma care publicly post the results of the third- DHS declines to amend the proposed and counseling, and inadequate access party inspections of ICE FRCs on DHS’s 63 regulatory text of this rule based on to language services. website to ensure as much transparency those broad, unsubstantiated Several commenters stated that DHS as possible within the inspection and allegations. has been unable to staff facilities in a alternative licensing process. See However, DHS does have a complaint timely manner with qualified discussion of inspection comments and and grievance process in place. Aliens pediatricians, psychiatrists, child and responses. Moreover, DHS is modifying in DHS custody who have a specific adolescent psychiatrists, mental health the regulatory text to provide that audits complaint about a staff member can file clinicians, and pediatric nurses, of licensed facilities will take place at a grievance either directly with OIG by particularly in remote areas. These the opening of a facility and take place emailing [email protected] or commenters stated that without on an ongoing basis, and DHS is to the facility’s grievance committee or adequate staffing, the facilities could not modifying the language regarding the designated grievance staff. Grievance provide adequate health services. juvenile coordinators, to be clear that forms are available in common areas Commenters cited to several incidents their role includes ongoing monitoring along with a locked box where residents that they believe exhibited this lack of of compliance with the standards in the can deposit the grievances. Detailed adequate care. regulations. Commenters relied on several reports DHS further notes that under this procedures for filing grievances at FRCs for these arguments. They pointed to a rule, FRCs will not be exempt from state are in the FRS. The procedures make DHS Inspector General report on an ICE- licensing standards, so long as the State accommodations for language barriers as run adult detention facility that they in which they are located maintains a well as physical and mental disabilities stated revealed astonishingly licensing process for facilities that hold and allow for help with filling the forms substandard and harmful conditions,64 minors together with their parents. by other staff members and legal Accordingly, the Berks FRC will representatives. They provide for 62 Human Rights First, ‘‘Family Detention: Still continue to receive regular scheduled informal and formal grievances, happening, Still Damaging,’’ (October 2015 Human emergency grievances, and appeals. The Rights First report) (discussing reports of and unscheduled inspections by the Commonwealth of Pennsylvania even FRS also prohibit retaliation by staff substandard care at family detention centers against residents for filing grievances. including Karnes, Dilley, and Berks). after this rule goes into effect. CRCL 63 Id. at 4; see also Academic Pediatric conducted an onsite investigation at Aliens in DHS custody, community Association, et al., July 24, 2018 Letter to Congress Berks in 2017 and sent the Expert faith-based organizations, non- (letter submitted by 14 medical and mental health Reports with Recommendations to ICE governmental organizations (NGOs), associations seeking congressional oversight of community leaders, immigration DHS-run facilities, and stressing that conditions in on July 21, 2017. The Medical Expert DHS facilities, which include open toilets, constant did not find alarming incidents of lawyers, and members of the public light exposure, insufficient food and water, no medical care failures. DHS notes that bathing facilities, extremely cold temperatures, and 65 https://www.humanrightsfirst.org/resource/ forcing children to sleep on cement floors, are the only facilities required to be family-detention-still-happening-still-damaging. traumatizing for children.) 66 https://pediatrics.aappublications.org/lens/ 64 See September 27, 2018 Office of Inspector Action at the Adelanto ICE Processing Center in pediatrics/139/5/e20170483#content/citation_ General Management Alert—Issues Requiring Adelanto, California, OIG–18–86. reference_63.

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with allegations regarding conditions at grievance process, and the use of (response in the E.O. 12866 section of DHS facilities can file complaints with segregation). The team reviews the this final rule), new licensing process, either the DHS Office of the Inspector facilities policy and procedures to hearings, definitions of influx and General (OIG) or with CRCL via the ensure the center is properly emergency, age determinations, and internet at https://www.dhs.gov/file- documenting its actions and incidences redetermining of UAC status at every civil-rights-complaint or through the at the center and is in compliance with encounter. The commenters also faulted CBP infocenter (OIG and CBP forward applicable standards. If problems are the Departments for allegedly not taking the complaints to CRCL). Complaints found at the facility, the team compiles into account the trauma detention filed with CRCL are processed and a report of expert recommendations. causes children and various reports uploaded into a database housing all The expert recommendations are issued related to detention. complaints. The CRCL team meets to the relevant DHS component, who One commenter asserted that the weekly to discuss all complaints then has opportunity to concur, failure to discuss the preliminary received that week. They decide which partially concur, or non-concur with injunction in the Saravia v. Sessions, allegations will be opened for formal recommendations and perform lawsuit is per se arbitrary and investigation. Allegations that are not remediation. If recommendations are capricious because it is a relevant open for investigation, remain in the not implemented, CRCL has the ability source of law that governs their database and are reviewed quarterly to to re-inspect facilities, and if necessary obligations on this issue. identify trends or systemic issues. If can issue a recommendation that DHS Response. Many of these commenters’ trends or systemic issues are found, close a facility, or remove ICE detainees concerns about arbitrary and capricious then those cases can be opened for from a detention facility. decision-making will not be addressed investigation. The public can find highlights of in this section of the rule, but have been Another method of receiving these Expert Recommendations in addressed throughout this rule in complaints is through DHS’s CRCL CRCL’s Annual Report to Congress. response to specific comments. This Community Engagement Team. Team CRCL also has a Transparency Initiative rule represents the result of reasoned Members go out into community, in which they are moving documents to decision making, and the Departments develop a rapport with NGOs, faith- the internet. As of this publication, two have provided rational explanations of based organization leaders, lawyers, and reports have been uploaded, but more their choices throughout. In particular, community members. Team Members are expected in the future. the Departments have discussed the hold community roundtable events at CRCL conducts 10–12 site visits a Saravia injunction above and noted that which they discuss DHS policies, year at ICE facilities with 1–2 of them it addressed a discrete legal issue not procedures implemented across the at FRCs. These visits have brought about addressed by the FSA and therefore not Department, and what it means for the major improvements in recent years, the focus of this rule. See Saravia v. community. The community in turn has and CRCL continues to monitor Sessions, 280 F. Supp. 3d 1168 (N.D. the ability to identify how it has affected implementation of their Expert Cal. 2017), aff’d sub nom. Saravia for them and if necessary file complaints Recommendations. A.H. v. Sessions, 905 F.3d 1137 (9th Cir. through these Team Members. 2018). The purpose of this rule is to When CRCL opens a formal Changes to Final Rule implement the FSA in light of the investigation, the OIG is contacted and For purposes of clarity, DHS is adding changed circumstances and given the right of first refusal to language to the final rule at 8 CFR accumulated agency experience since investigate. If OIG turns down the 236.3(i)(4)(xx) explaining that licensed the signing of the agreement over 20- opportunity to investigate, then CRCL facilities will maintain a grievance filing years ago. In doing so, DHS has performs the investigation. Depending process and requiring aliens in these carefully assessed and explained its on the type of complaint, the facilities to avail themselves of this changes. The Departments will continue investigation could be conducted offsite process if they wish to report a formal to abide by all relevant court orders. or onsite. If offsite, CRCL will work with grievance. DHS also is adding language Comments. Some commenters raised the respective DHS component to gather in 8 CFR 236.3(o) to make it more clear due process concerns. These comments documentation specific to the that the juvenile coordinator will included general attacks on the allegations. If onsite, CRCL will conduct monitor compliance with the regulation. supposed ‘‘deterrence rationale’’ of the the investigation at the facility, which, rule and the prospect of longer for ICE, includes interviewing ICE 5. Due Process, Constitutional, detention, which some commenters detainees. Administrative Procedure Act, and claimed would reduce access to legal On-site investigations are of the International Law Violations services or prevent children from facility policy and operations, and do Public Comments and Response participating in their immigration not address personnel misconduct Comments. Numerous commenters proceedings. The comments also issues. The CRCL Compliance Branch made general allegations that the rule included more specific objections to the goes to the ICE or CBP facilities to was arbitrary and capricious and does ongoing redetermination of UAC status, conduct on-site investigations. The team not withstand the requirements of the hearing provisions, and process is comprised of a combination of the APA. As case law makes clear, arbitrary surrounding re-taking custody of a following, depending on the allegations and capricious review requires that an previously released minor. presented: Policy advisors with agency apply reasoned decision making Response. The Departments disagree investigative authority, a medical when proposing new regulations and that the proposed regulations violate the consultant, a corrections consultant, an provide a rational explanation of the due process clause of the Fifth environmental health and safety Amendment for all of the reasons changes.67 The commenters claimed consultant, a suicide prevention explained throughout the preamble. that the Departments had failed to do so consultant, and a mental health Multiple procedural safeguards exist in with respect to the cost calculations consultant. The team will always look this context, including those contained into medical care/treatment, and the 67 Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. in section 462 of the HSA and section overall conditions of detention (food State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 235 of the TVPRA with respect to UACs, preparation, cleanliness, safety issues, (1983) the INA more broadly, and the

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provisions of this rule implementing the individuals who remain of the judiciary in ensuring compliance relevant and substantive terms of the unaccompanied, under the age of with the FSA. FSA. eighteen, and without legal status Response. As stated in the NPRM, Regarding comments that detention during removal proceedings.’’). Notably, Congress provided authority for DHS to will impact access to legal services, the however, a redetermination will not detain certain aliens for violations of the rule specifically provides for attorney- affect USCIS jurisdiction over an asylum immigration laws through the INA and client visits (in accordance with application where it had initial expanded legacy INS’s detention applicable facility rules and regulations) jurisdiction based on the applicant’s authority in IIRIRA. See 83 FR 45486 at for those minors in ICE FRCs, as well as classification on the date of filing. 45490 (Sept. 7, 2018). As stated a comprehensive orientation session The proposed regulations on bond elsewhere in this document, this upon admission, including information hearings also comport with due process. rulemaking is designed to implement on the availability of legal assistance. The proposed regulations (§ 236.3(m)) the relevant and substantive terms of the See 8 CFR 236.3(i)(4)(ix). While in a provide for a bond hearing by an FSA, in keeping with the terms of the licensed facility each UAC in ORR immigration judge (to the extent FSA itself. For more detailed custody will also be provided with permitted by 8 CFR 1003.19) for minors information regarding the authority to information regarding the right to a who are in removal proceedings under promulgate these regulations, please see removal hearing before an immigration the INA 240 and who are in DHS the discussion of the statutory and judge, the right to apply for asylum, and custody. Those who are not in section regulatory authority in the NPRM. Id. the right to request voluntary departure 240 proceedings are ineligible to seek Comments. Another commenter stated in lieu of removal. See 45 CFR review by an immigration judge of their that the proposed regulations ‘‘implicate 410.402(c)(14). HHS care and custody DHS custody determination, but may be the Constitution’s Article III prohibition will not prevent access to legal considered for release on parole. And on Advisory Opinions’’ because the rule assistance or the possibility of DHS is modifying the regulatory text to ‘‘undermine[s] and nullif[ies]’’ the FSA. administrative hearings. provide that parole of minors detained This commenter also stated the proposed regulations implicate DHS also disagrees that detention in pursuant to section 235(b)(1)(B)(ii) of FRCs will make it harder for children violations of the Fourth, Sixth, Seventh, the INA or 8 CFR 235.3(c) who are not accompanied by their parents or legal and Eighth Amendments, but did not a flight risk or a danger will generally guardians to meaningfully participate in provide an explanation for this serve an urgent humanitarian reason. their immigration proceedings; rather, assertion. A second commenter stated Separately, § 410.810 provides for an keeping families together in custody as that the proposed regulations violate the independent hearing officer process, a unit will remove the possibility of the Eighth Amendment because, in the guided by the immigration judge bond family missing a hearing, while also commenter’s view, the proposed hearing process currently in place for ensuring that the family can decide as regulations can lead to indefinite UACs in ORR custody under the FSA. a unit how to handle their ongoing detention in violation of the principle of The Department disagrees that the removal proceedings. proportionate sentencing. When it comes to redetermining UAC lack of a specific time frame in the rule Response. This rule does not status upon each encounter, DHS notes governing re-apprehension of a implicate the Constitutional prohibition that the statutory definition of UAC previously released minor violates the on Article III courts issuing advisory indicates that the status could change if minor’s due process rights. Section opinions. These regulations are being an individual turns 18, gains legal 236.3(n) sets out the scenarios in which issued by Federal agencies, not courts, status, or is placed with a parent or legal a previously released minor becomes an and the FSA itself provides that it will guardian. See 6 U.S.C. 279(g). Reflecting escape-risk, a danger to the community, terminate upon issuance of regulations. that plain language, two circuit courts subject to a final removal order, or DHS cannot reply to vague assertions have held that an individual who was lacking a parent or legal guardian regarding violations of certain initially designated as a UAC can available to care for the minor and must amendments without further subsequently cease to be a UAC. See be taken back into custody. A custody explanations from the commenters, e.g., Mazariegos-Diaz v. Lynch, 605 Fed. redetermination hearing may be which were not provided. Regarding Appx. 675, 676 (9th Cir. 2015) requested in accordance with § 236.3(m) proportionate sentencing, this (unpublished) (finding a 20-year-old (to the extent permitted by 8 CFR rulemaking does not address sentencing was no longer a UAC for purposes of 1003.19). And although the regulations at all. DHS does not impose any kind of applying for asylum under the TVPRA); are silent as to how long after re- criminal punishment. Immigration see also, Harmon v. Holder, 758 F.3d apprehension a redetermination hearing detention is civil in nature and 728, 733–34 (6th Cir. 2014) (finding will occur, it will be within a reasonable effectuates enforcement of the asylum applications filed under TVPRA time frame and any issues regarding the immigration laws. For a discussion on UAC provisions must be filed while the justification for the re-apprehension will commenters’ concerns regarding applicant remains in that status). And be appropriately dealt with in the indefinite detention, see the section on the Office of General Counsel for the hearing (if necessary). this issue entitled ‘‘Indefinite Detention Department of Justice, EOIR, has found Comments. One individual stated that due to Alternative Licensing.’’ that immigration judges have authority the proposed regulations violate the Comments. One commenter stated to assess whether a UAC continues to Constitution’s separation of powers. The that the proposed regulations are in meet the statutory definition. See DOJ commenter stated that the contravention of the due process clause EOIR OGC Memorandum, Legal Opinion Naturalization Clause in Article I, of the Fourteenth Amendment. re: EOIR’s Authority to Interpret the section 8, clause 4 gives Congress Response. The Fourteenth Term Unaccompanied Alien Child for plenary power to establish a uniform Amendment’s due process clause Purpose of Applying Certain Provisions Rule of Naturalization, and that the applies to States, not the Federal of the TVPRA, Sept. 19, 2017, at 9 (‘‘Our provisions contained in the proposed Government. interpretation is consistent with the regulation are wholly within Congress’ Comments. One commenter also purpose of the TVPRA, which is to purview. This commenter stated the stated that the proposed regulations do provide protections and rights to proposed regulations also usurp the role not provide for any notice to the UAC

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of a custody determination or the Comments. Several commenters that removing such terms would evidence used to make it. argued that the rule violates transform specific FSA provisions from Response. As stated in the NPRM, international laws, pointing to express obligations into non-binding independent hearing officers would provisions of international documents statements of agency activity. determine whether a UAC, if released, relating to privacy, special care and One commenter stated that the would present a danger or a flight-risk concern for the wellbeing of children, government’s proposed standards and issue the decision in writing. See 83 and torture and cruel, inhuman or violate paragraph 12 of the FSA by FR 45486 at 45490 (Sept. 7, 2018). The degrading treatment or punishment. creating exceptions for when the government bears the initial burden of Multiple commenters emphasized that government will place minors with their production, thereby giving the UAC the U.N. Special Rapporteur on torture family members based on the ‘‘well- notice of the custody determination and has stated that ill treatment can amount being’’ of the minor or operational the evidence supporting it. The UAC to torture if it is ‘‘intentionally used to feasibility and expanding the emergency then would bear the ultimate burden of deter, intimidate, or punish migrants or exception that would allow a minor to proof would shift to the government, their families . . . or to coerce people be detained with an unrelated adult for which would use a preponderance of into withdrawing asylum requests.’’ One more than 24 hours. Another the evidence standard. commenter stated that the FSA is commenter stated that the provisions Comments. Several commenters grounded in international human rights regarding when UACs can be placed in contended that the proposed regulations law principles, and therefore that these secure facilities violates the FSA are unconstitutionally vague, ultra vires, regulations must not violate them. because it allows HHS to place overbroad, and ‘‘generally lack Response. The provisions codified in individuals in secure custody based on enforcement and oversight of the this rule are consistent with the FSA ‘‘danger to self or others’’—a Government’s actions.’’ Specifically, the and international law. Nothing in the requirement the commenter stated is not commenters stated that the rule is vague proposed rule authorizes the intentional found in the FSA. The commenter also insofar as it fails to define the infliction of ill treatment on families or expressed concern that the proposed rule fails to provide that HHS will implications of giving DHS the power to anybody else, and much less for the review all secure placements monthly handle immigration benefits and purpose of intimidating, punishing, or and to specify how placements in staff enforcement, unconstitutional insofar as coercing migrants and their families. To secure or residential treatment centers it lacks specific standards of care and the contrary, consistent with the basic goal of the FSA, the proposed rule aims will be reviewed. due process protections, and overbroad Several commenters stated that the in failing to establish concrete to avoid ill treatment of families who remain in custody by requiring FRCs to final rule should have a mechanism guidelines with respect to ‘‘ongoing’’ such as paragraph 24B of the FSA that abide by stringent standards regarding determination of UAC qualifications. allows minors to challenge their conditions of confinement, and Response. General comments placement in a facility and whether the providing for third-party auditing of regarding DHS’s authority to handle facility complies with FSA-required compliance and the public posting of immigration benefits and enforcement standards. One of these commenters the results of those audits. are beyond the scope of this rulemaking. criticized the explanation in the NPRM With respect to the specific regulations Changes to Final Rule that a child could utilize the legal at issue here, the Departments reject the DHS declines to amend the proposed procedures under the APA to challenge suggestion that they are vague, ultra her placement as woefully lacking the vires, or overbroad for all of the reasons regulatory provisions to the final rule in response to these public comments, but protections afforded by the FSA. This already discussed above. The commenter also states that any notes that DHS is modifying the regulations contain appropriate arguments by DHS or HHS that they are regulatory text in places to clarify standards of care and due process not subject to all of the provisions in the oversight and monitoring requirements. protections, as well as concrete FSA is inaccurate because the FSA guidelines with respect to the 6. Adherence to the Flores Settlement explicitly extends to any successors, assessment of an individual’s UAC Agreement therefore, these provisions must be status, consistent with the statutory Public Comments and Response included in the regulations of both protections and FSA that the regulations agencies. are designed to implement. The Comments. Many commenters One commenter stated that the Departments also disagree with the provided comments regarding whether proposed regulations add additional commenter stating that the regulations the proposed rule sufficiently requirements to the custodian affidavit lack enforcement and oversight, implemented the FSA to trigger the that are not required by the FSA, and especially considering the portions of termination of the FSA. Some which could lead to a decrease in the the rulemaking regarding licensed commenters stated that the government number of willing custodians. programs standards that licensed cannot change the terms of the FSA Specifically, the requirements that the programs must meet in keeping with the through rulemaking, but can only do so custodian ensure the UAC report for principles of treating minors and UACs with a motion to the court that approved removal, if so ordered, and that the in custody with dignity, respect, and the FSA. Others voiced opposition to custodian report to ORR and DHS no special concern for their particular ending the FSA at all, stating that it had later than 24 hours after learning that vulnerability. See e.g., § 410.402 sufficiently protected the well-being of the UAC has disappeared are not concerning the minimum standards minors. required by the FSA, and could have applicable for licensed programs. DHS Many commenters suggested that the negative impacts on the custodian/UAC is also modifying the regulatory text in rule did not adequately implement the relationship, which is not in the best several respects, in response to FSA sufficient to trigger its termination. interests of the minor. The commenter comments, to clarify requirements of Some of these commenters stated that suggested that any required reporting oversight and monitoring to ensure that the rule removed mandatory terms, such after the disappearance of a UAC be DHS facilities satisfy applicable as ‘‘shall’’ or ‘‘must,’’ when describing made to the local police, who are better standards. the obligations of the government, and suited to find a missing person.

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Response. It was never the intent of commenter’s assessment. As for HHS’ Commenters also asserted that minors the Government when signing the portion of the rule, the regulations are should have a mechanism for original FSA or its modification in 2001 binding on the shelters that ORR challenging their placement in a facility. that the agreement would remain in regulates, whether or not the rule uses Immediately upon placement in an HHS place permanently, and the FSA the words ‘‘will,’’ ‘‘shall,’’ and ‘‘must.’’ secure facility, staff secure facility, or expressly provides for termination upon One commenter also stated that DHS residential treatment center (RTC), issuance of regulations implementing is not complying with paragraph 12 of UACs have the right to file an APA the agreement. The public generally was the FSA because it is carving out claim in Federal District Court, if they not given a chance to comment on the exceptions that do not appear in the believe they have been treated FSA as it can with notice and comment FSA such as taking into consideration improperly and/or inappropriately rulemaking. Notice and comment the well-being of a child or expanding placed in a restrictive setting. A judge rulemaking allows people to influence the meaning of emergency in the FSA. will then decide whether or not to policy by providing thoughtful DHS disagrees with this commenter. review the UAC’s case to determine comments on proposed regulatory text The provisions of paragraph 12 state whether they should remain in a so that agencies can make, where that a child who could not be released restrictive setting. After 30 days of appropriate, corresponding changes in according to paragraph 14 or transferred placement of an HHS secure or RTC the final rule. Merely publishing the to a licensed program pursuant to setting, UACs may request the ORR FSA online would not provide the paragraph 19 cannot be held with Director, or his or her designee, safeguards and review process of a unrelated adults for more than 24 hours. reconsider their placement, as described rulemaking that has gone through notice The solution in such cases, according to in ORR’s Policy Guide at section 1.4.2. and comment and is published in the paragraph 12, is that the INS could This policy also describes the Code of Federal Regulations. Indeed, transfer the unaccompanied minor to a requirements for 30 day placement DHS and HHS are making several county juvenile detention center or any reviews for UACs in restrictive settings. changes to this final rule based on other INS detention facility. The Commenters also believed that DHS comments received from the public. proposed provision gives DHS some Some commenters opined that the needs to add specific language similar to leeway to avoid such transfers in cases paragraph 24B of the FSA into the rule. government cannot change the FSA of emergencies, while maintaining the without court approval and that this But the provisions in § 236.3(g)(1)(ii) requirement that UACs are provided speak to this by stating that a minor will rulemaking process is, therefore, not adequate supervision and that their valid. But the regulations here are not be given the same Notice of Right to safety and well-being is taken into themselves changing the FSA; they are Judicial Review under the regulation as consideration. The definition of implementing it with appropriate is given under the FSA regarding emergency in paragraph 12B speaks to modifications to reflect changes in judicial review in the United States exactly the same principles as the circumstance and accumulated agency District Court if the facility where he or proposed definition, i.e. natural experience. The FSA also plainly she is housed does not meet the disasters, facility fires, civil contemplates that a notice-and- standards in § 236.3(i). And the disturbances, and medical emergencies comment process would occur, which preamble specifically stated that the that prevent the timely transfer or presupposes some flexibility in how to Notice of Right to Judicial Review will placement of minors or UACs. Nothing implement the agreement in regulations. be the same as in Exhibit 6 of the FSA Commenters claimed that DHS (and in the proposed definition would allow (see 83 FR 45500). The Notice in Exhibit presumably HHS) did not use the government the ability to house 6 states: ‘‘The INS usually houses mandatory implementation language UACs with unrelated adults beyond 24 persons under the age of 18 in an open such as ‘‘will’’ and ‘‘shall.’’ But in those hours as a matter of course. setting, such as a foster or group home, provisions that require the government Commenters expressed concern over and not in detention facilities. If you to provide services or benefits to minors the HHS criteria that allows for UACs to believe that you have not been properly or UACs, the regulatory text does indeed be placed in a secure facility, asserting placed or that you have been treated use the words ‘‘will,’’ ‘‘shall,’’ and that the criteria—‘‘danger to self or improperly, you may ask a Federal ‘‘must.’’ For example, in § 236.3(i)(4) others’’—is not found in the FSA. In judge to review you case. You may call that replicates the requirements of Paragraph 21, the FSA defines a lawyer to help you do this. If you Exhibit 1 of the FSA, it clearly states conditions on which a minor may be cannot afford a lawyer, you may call one that the ‘‘standards shall include . . .’’ placed in a State or juvenile detention from the list of free legal services given and then lists everything that must be facility (i.e., a secure facility), which to you with this form.’’ Moreover, a provided when in ICE facilities. On the include a determination that the minor regulation cannot confer jurisdiction on other hand, when it could benefit the ‘‘has committed, or has made credible Federal court minor or UAC that the government not threats to commit, a violent or malicious Changes to Final Rule act in a strict manner, the regulatory text act (whether directed at himself or uses ‘‘may.’’ For example, in discussing others)’’ while in custody; ‘‘has engaged, DHS declines to amend the proposed re-assumption of custody by DHS of a while in a licensed program, in conduct regulatory provisions in the final rule in previously released minor section, that has proven to be unacceptably response to these public comments. § 236.3(n), states ‘‘DHS may take a disruptive of the normal functioning of minor back into custody if there is a the licensed program in which he or she 7. Appearance at Hearings material change in circumstances . . .’’ has been placed and removal is Public Comments and Response DHS is also modifying the language of necessary to ensure the welfare of the § 236.3(j) to provide that for minors minor or others;’’ and/or ‘‘must be held Comments. Multiple commenters detained pursuant to INA in a secure facility for his or her own stated that the proposed regulation 235(b)(1)(B)(ii) or 8 CFR 235.3(C), parole safety.’’ HHS’ own policy and this rule’s provides no support for its claim that ‘‘will’’ generally be warranted when the criteria on UAC placements in secure families present a flight risk, fail to minor is not a flight risk or danger. facilities parallel the conditions set forth appear to the required proceedings, or Therefore, DHS does not agree with the in Paragraph 21 of the FSA. do not seek asylum relief.

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Commenters provided empirical exception of the T. Don Hutto indicating that one in four to one in five research or anecdotal evidence Residential Center between 2006–2009, released aliens failed to appear). . ICE indicating that asylum-seekers released the only facility used as an FRC from cannot carry out its mission to enforce from detention have a high appearance 2001–2014 was the Berks FRC (Berks) in the immigration laws if aliens fail to rate for their immigration hearings. For Berks County, Pennsylvania, which has attend their immigration hearings and example, one commenter cited results had a capacity of no more than 96 abscond into the interior in the United from a 2016 study which used residents since its inception. In States. DHS’s approach to immigration immigration court data from the response to the influx of UACs and detention of family units reflected in Transactional Records Access family units in 2014 in the Rio Grande this rule, which allows for immigration Clearinghouse (TRAC) at Syracuse Valley, ICE opened FRCs in Artesia, officers to make decisions about parole University, which estimated an overall New Mexico, in June 2014 (closed in on a case-by-case basis, will allow ICE appearance rate of 76.6 percent at December 2014), Karnes County, Texas, to appropriately use the statutorily- immigration court in 2015 and found in July 2014, and Dilley, Texas, in authorized tools to carry out its mission. that releasing individuals on bond did December 2014. The Artesia facility had not make a significant impact on who a capacity of approximately 700 during Changes to Final Rule absconds. Another commenter cited a its time as an FRC, while the Dilley FRC DHS declines to amend the proposed recent study published in the California opened with a capacity of 2,400, and the regulatory provisions in the final rule in Law Review, which found that 86 Karnes FRC opened with a capacity of response to these public comments. percent of families, and 96 percent of 830. Given that FRC capacity, the families applying for asylum, who were number of family units with the 8. Asylum Is a Right released from detention attended all potential to be detained was drastically Public Comments and Response their court hearings. larger by mid-2014 than for the thirteen Comments. Many commenters Commenters further pointed to the years prior. Accordingly, the data on in submitted comments declaring that the high compliance rates of those enrolled absentia removal order rates from 2014 government is obligated to uphold the in an ATD program. In particular, to the present is a more reliable source rights of asylum seekers and commenters quoted from DHS’s May of information for the purposes of this accordingly: Asylum seekers should not 2017 Congressional Budget Justification, rulemaking. EOIR found that for be detained; should be given temporary in which ICE stated that, historically, completed cases from January 1, 2014 asylum pending a formal determination; DHS has experienced strong cooperation through March 31, 2019 that started at and should not be put at a disadvantage from aliens in ATD through their an FRC, 43 percent of family unit in pursuing their asylum claim through immigration proceedings. The members were issued final orders of detention. commenter added that any lack of data removal in absentia out of a total of Some commenters stated that any on rates of compliance or removal for 5,326 completed cases. DHS OIS has person seeking asylum is not an illegal those on ATD is a failure of the found that when looking at all family immigrant, but one who should be department for not collecting the unit aliens encountered at the protected under international law and information. Southwest Border from FY 2014 through Response. ICE’s objective and mission FY 2018, the in absentia rate for given temporary asylum with an is to effectuate removals of individuals completed cases as of the end of FY opportunity to contribute to our society. with final orders of removal. The most 2018 was 66 percent. One commenter stated that seeking effective means to achieve this is using While DHS does not dispute the data asylum is a humanitarian right, not a detention. This rule creates a path to presented on past ATD programs, there crime, and it is inhumane to jail ensure that individuals comply with continued to be a significant portion of children to punish their families for their appearance obligations and are not participants who did not comply fully seeking safety. The commenter further issued orders of removal in absentia. In with final removal orders. The ATD stated, citing Plyler, that the government particular, through the alternative program is not sufficiently resourced to cannot control the conduct of adults by Federal licensing system, the rule ensure that all family units can be punishing their children. enables ICE to hold families in custody enrolled in ATD through the duration of Response. Nothing in this rule during the full course of immigration their proceedings, or to ensure that ICE changes an asylum-seeker’s legal right to proceedings, consistent with Congress’s can quickly respond to alerts or provide apply for asylum, nor prevents asylum- mandate of detention for certain aliens. adequate oversight of program seekers from availing themselves of the The rule would also provide for custody participants. ATD is less effective than procedures to which they are entitled (through the denial of bond or parole, as detention at ensuring compliance with under U.S. law. This rule also does not applicable) if a minor poses a flight risk removal orders issued by immigration and cannot amend statutory provisions or danger to the community. judges, although the ATD program is regarding the asylum process for minor DHS does not dispute that many effective at more closely monitoring a aliens, their accompanying parents or families who are released thereafter small segment of the non-detained legal guardians, or UACs. appear at all their hearings throughout population and allows for much greater DHS disagrees with the suggestion their immigration proceedings, but oversight than traditional release with that detention infringes upon the many fail to appear, which is a serious very little supervision at all. asylum application process. Congress concern. The studies and data cited by Even if the commenters’ studies and expressly provided for detention of commenters regarding percentage of data accurately reflected the rates at certain aliens during section 240 final orders issued in absentia to which alien family unit members fail to removal proceedings, see 8 U.S.C. members of a family unit are skewed by show up to their immigration hearings, 1225(b)(2)(A) (‘‘shall’’ detain), including the fact that they review data over a however, the number of aliens who fail for consideration of an application for period from 2001–2016. Several to abide by immigration law and asylum, 8 U.S.C. 1225(b)(1)(B)(ii). See variables changed in the year 2014 that disappear into the interior of the United also 8 U.S.C. 1226(a) (‘‘may’’ detain, render the data from before that time an States would still be a significant without any exception for aliens seeking inaccurate reflection of current ICE problem. See Demore, 538 U.S. at 523 asylum). Family units housed at FRCs operational concerns. With the (describing as ‘‘striking’’ statistics have access to legal service providers

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and law libraries to pursue their asylum borrowed verbatim from the FSA, and provides to several facilities as a set of claims during their stay. Furthermore, DHS and HHS have noted the ways in best practices. DHS notes that it has this rule codifies the FSA requirement which these regulations deviate from responded to concerns about medical that FRCs provide legal services the precise scheme set forth in the FSA, care delays in the section on ‘‘DHS information and allow attorney-client as well as the reasons for the changes. Track Record With Detention.’’ visits at the FRC itself. USCIS asylum ICE does not segregate LGBTQ aliens Changes to Final Rule officers can conduct credible-fear in FRCs from the rest of the population. assessments on-site at FRCs or through DHS declines to amend the proposed Minors are with their accompanying virtual teleconferencing while the regulatory provisions of the final rule in parents and would not be segregated. individuals are housed at FRCs. response to these public comments. While segregation may occur in a secure Similarly, UACs are able to file for 10. LGBTQ juvenile facility, ICE only employs such asylum after they are issued Notices to measures for the alien’s own safety. Appear and placed into immigration Public Comments and Response DHS disagrees with the commenter’s proceedings under section 240 of the Comments. Various commenters suggestion that LGBTQ individuals are INA. And as stated in the proposed rule, wrote about the plight of Lesbian, Gay, disproportionately disadvantaged in USCIS maintains initial jurisdiction Bisexual, Transgender, Queer, Intersex, establishing their claim to asylum while over their claims. and Asexual (LGBTQIA) and housed at an FRC. LGBTQ individuals have the same access to legal service Changes to Final Rule transgender and gender non-conforming (TGNC) children in custody. For brevity providers and law libraries as any other DHS declines to amend its proposed and because the vast majority used the alien housed at an FRC; there is no regulatory text in response to these acronym LGBTQ, we will do likewise. segregation. public comments. Several commenters were worried that Changes to Final Rule 9. Legal Authority Questioned LGBTQ youths would be mistreated and possibly abused if kept in custody for an DHS declines to amend the proposed Public Comments and Response extended period of time, and one was regulatory provisions of the final rule in Comments. Thousands of commenters concerned that their due process rights response to these public comments. asked the Departments to withdraw the might be infringed. Some stated that 11. Family Reunification proposed rule. Most stated it did not detention centers often segregate the comply with the principles in the FSA. LGBTQ population because they are Public Comments and Response Some even went so far as to say that ICE more likely to be subject to violence, Comments. A few commenters should be abolished. Many commenters including sexual abuse and assault. disagreed with the proposed language stated that if the government believed Others said that ICE’s method of placing under § 410.302(c), in which ORR may the terms of the FSA were no longer the LGBTQ population in solitary require further suitability assessment of appropriate or practicable it should file confinement is inappropriate and causes proposed sponsors, including a motion under Federal Rules of Civil irreparable psychological harm. Others fingerprint-based background and Procedure 60(b)(5) for relief from suggested that LGBTQ people, criminal records checks on the judgment in the district court that has particularly those living with HIV, face prospective sponsors and on adult retained jurisdiction over the delays in receiving life-saving treatment residents of the prospective sponsor’s implementation and enforcement of the while in detention. Still others household. The commenters believed FSA. One commenter stated that this expressed concern that detention puts that expanded suitability assessments, regulation was a unilateral attempt to LGBTQ individuals at a disadvantage as described in § 410.302(c) and in the overturn a stipulated agreement and for establishing the facts of their asylum Memorandum of Agreement (MOA) suggested that the administration claims. Multiple commenters said that between ORR, ICE, and CBP concerning should respond to comments by more and more LGBTQ individuals will information sharing (see, ORR–ICE–CBP explaining under what legal authority it be fleeing the Northern Triangle Memorandum of Agreement Security seeks to change the stipulated countries because civil society Regarding Consultation and Information agreement. organizations there are reporting that Sharing in Unaccompanied Alien Response. This regulation implements LGBTQ people are at high risk for Children Matters (April 13, 2018)), are the relevant and substantive terms of the violence and extortion by gangs and unnecessary and cause needless delays FSA. Codification of the regulations is organized criminal groups, hate crimes, in the release of UAC by deterring authorized by the Agreement and and abuse by authorities. potential sponsors from coming forward needed to preserve the terms of the Response. DHS takes very seriously and violate DHS’s own privacy policy Agreement while adapting to the the safety of LGBTQ individuals in ICE and the privacy rights of potential statutory changes made by the HSA and custody. Because this rule does not sponsors. TVPRA that affect the processing and address the circumstances of detention Response. Under 8 U.S.C. care of minors in DHS custody and for all aliens in ICE custody, and only 1232(c)(3)(C), ‘‘Not later than 2 weeks UACs in HHS custody, as well as addresses the circumstances of minors, after receiving a request from the substantial changes in circumstance and their accompanying family members, Secretary of Health and Human agency experience. Codification of these and UACs, DHS limits the response that Services, the Secretary of Homeland regulations will allow DHS and HHS to follows to the concerns raised by Security shall provide information realistically manage the treatment of commenters as it pertains to these necessary to conduct suitability minors and UACs, respectively, in their distinct categories of LGBTQ aliens. assessments from appropriate Federal, custody in a way that affords DHS notes that the requirements of State, and local law enforcement and substantively equivalent protections as PREA and its implementing regulations immigration databases.’’ The provisions those in the settlement agreement while apply to FRC operations and include in § 410.302(c) pertaining to suitability enforcing the immigration laws provisions on LGBTQ screening and assessments are consistent with effectively. These regulations largely safety. ICE ERO also promulgated a paragraph 17 of the FSA; and to the parallel the FSA, often in language Transgender Care Memorandum that it extent the section updates the language

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of the FSA, does so to follow the the new licensing process and reduces factors including the population of requirements for safety and suitability states’ flexibility in determining how aliens crossing the border and how assessments in the TVPRA. However, as facilities in their states should meet many aliens are processed for expedited noted previously, in its ongoing effort to legal mandates. removal, express a fear of return, are streamline suitability assessments so as Response. Because this rule codifies found to have a credible fear, and to reduce the time UAC spend in ORR current HHS operations, including those ultimately seek asylum. Since the care and prevent any unnecessary delay regarding secure HHS facilities and proposed rule was published, DHS has in releasing them safely to an UAC health-related costs, HHS seen a large spike in the number of appropriate sponsor, ORR has recently anticipates no significant cost effect family units apprehended or found issued four new Operational Directives from this rule. HHS notes that the costs inadmissible at the Southwest Border. that eliminate the burden of for implementing the 810 hearings is As of June 2019, with three months fingerprinting for many sponsors, described later in this rule and are remaining in FY 2019, CBP has including most parents or legal estimated to average $250,000 per year. apprehended over 390,000 family units guardians and close relatives, and allow DHS disagrees that it failed to between the ports of entry on the for UAC to be released to other relative adequately assess the costs and benefits southwest border, as compared to sponsors under most circumstances of this rule. DHS provided the costs of 107,212 family units in all of FY 2018.69 before fingerprint results are available. the current operations and procedures Consequently, because the costs of this And, again, ORR refers to section 224(a) for implementing the terms of the FSA, rule are dependent on a number of of DHS’s current fiscal year 2019 the HSA, and the TVPRA in the NPRM factors outside of this rulemaking, some Appropriations Act which generally at 83 FR 45513, discussed reasonable of which have changed since the NPRM preclude DHS from taking certain alternatives to the proposed rule at 83 was published, the Departments enforcement actions ‘‘against a sponsor, FR 45520, and considered qualitative consider this rule to be economically potential sponsor, or member of a benefits such as protecting the safety of significant. DHS has assessed the costs household of a sponsor or potential minors and the public at 83 FR 45520. and benefits of the rule accordingly in sponsor of an unaccompanied alien In addition, as described in the the E.O. 12866 section of this child [‘UAC’] . . . based on information proposed rule, a primary source of new rulemaking. shared by [HHS].’’ 68 costs due to this rule will be as a result DHS responds to comments about of the alternative FRC licensing process ATD earlier in the rule. 12. Executive Order 12866, 13563 and and changes to ICE’s current practice for Finally, DHS notes that E.O. 13771 13771 parole determinations. These changes determinations are made at the final Comments. Public Comments and may result in additional or longer rule stage of the rulemaking process. Response detention for certain minors and their The Office of Information and Comments. Several commenters accompanying adult, thereby increasing Regulatory Affairs has determined that stated that the NPRM violates Executive the per-person, per-day variable FRC this is a regulatory action under E.O. Orders 12866, 13563, and 13771. costs paid by ICE. DHS provided an 13771. estimated number of minors in FY 2017 With respect to E.O. 12866, Changes to Final Rule commenters stated that the rule should that would have been affected had the have been deemed economically rule been in place, and per-person, per- In this final rule, the Departments significant. An economically significant day unit costs for each of the current now consider this rule to be rule is one where the Office of FRCs. For those costs and benefits that economically significant. Information and Regulatory Affairs DHS was not able to quantify and 13. Alternative Methodology To determines that the rule may have an monetize, the NPRM included a Estimate Impacts impact of $100 million or more in any qualitative description and a reasoned Public Comments and Response given year. Rules designated as such are discussion about why they could not be reviewed by the Office of Information quantified. DHS provided enough Comments. Many commenters who and Regulatory Affairs. Commenters information on the unit costs of the rule stated the rule would lead to increased complained that the rule did not so that commenters could provide detention periods and a need to expand provide a cost estimate, consider meaningful comments. In fact, some detention capacity cited the estimated alternatives to detention, or account for commenters used the data DHS costs derived from the published report construction costs of facilities or health provided, along with their own by the Center for American Progress, related costs. They also said that HHS assumptions, to make their own The High Costs of the Proposed Flores had not reasonably estimated the cost of estimates of the cost of the rule. Regulation, by Philip Wolgin, published the rule and that DHS failed to DHS agrees with commenters, on October 19, 2018, by the Center for maximize net benefits as required by however, that this rule may result in American Progress. E.O. 12866. With respect to E.O. 13563, costs, benefits, or transfers in excess of That report estimated that, under the commenters similarly stated that the $100 million in any given year and proposed rule, DHS would incur new agencies had failed to provide a therefore is economically significant, annual costs of between $201 million reasonable cost estimate, bypassing or particularly in light of the urgent crisis and $1.3 billion. The paper considered violating the requirements of both E.O. at the border. DHS acknowledged in the two scenarios to establish this range of 12866 and E.O. 13563. With respect to proposed rule that, as the rule itself estimated costs. The first scenario E.O. 13771, which directs the executive allows greater flexibility for operational included four assumptions: That the branch to prudently manage the cost of decisions, but does not itself make those amount of people booked into FRCs planned regulations, the commenter decisions, it did not know if this rule said the proposed rule creates an would result in the development of new 69 See United States Border Patrol Southwest increased burden to the Federal FRCs, how many individuals would be Border Migration FY2018 at https://www.cbp.gov/ detained at FRCs after the rule is newsroom/stats/sw-border-migration/fy-2018 (last Government to create and operationalize visited June 13, 2019). See also Southwest Border effective, or for how much longer Migration FY 2019 at https://www.cbp.gov/ 68 CONSOLIDATED APPROPRIATIONS ACT, individuals will be detained, because newsroom/stats/sw-border-migration (last visited 2019, Pub. L. 116–6, February 15, 2019, 133 Stat 13. such facts depend on many unknown June 5, 2019).

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would remain the same as in FY 2017, certain groups of aliens are likely to rule under the terms of the that the average length of stay for all have their length of stay at an FRC Congressional Review Act. individuals in FRCs would increase increased as a result of this rule, such Response. The CRA delays from 14.2 days to 47.4 days, that as those who received a negative implementation, and provides a children who received negative credible credible fear determination. The paper mechanism for congressional fear determinations or final orders of also assumes that ICE operates in an disapproval, of regulations designated removal would be held for longer environment free of resource constraints as ‘‘major rules’’ by the Administrator of periods of time, and that the average and would be able to detain without the Office of Management and Budget’s daily cost of a family detention bed regard to the agency’s finite resource Office of Information and Regulatory would stay the same. Based on these availability; as DHS explains in the final Affairs. Such a designation is made assumptions, the paper estimated DHS rule, expanding FRC capacity would where OMB finds the rule has resulted would incur additional detention costs require additional appropriations. This in or is likely to result in (a) an annual of approximately $194 million annually. regulation alone is not sufficient. For effect on the economy of $100,000,000 Under scenario two, the paper more information about these groups of or more; (b) a major increase in costs or assumed that every alien apprehended people, please see the E.O. 12866 prices for consumers, individual in a family unit would be detained in an section of this rule. The paper’s industries, Federal, State, or local FRC; that the number of individuals estimates of the additional number of government agencies, or geographic apprehended as a part of a family unit facilities needed relied upon these same regions; or (c) significant adverse effects in FY 2018 (which the paper indicated questionable assumptions. This rule on competition, employment, to be 107,063), would remain the same, does not mandate operational investment, productivity, innovation, or and that the average length of detention requirements pertaining to new FRCs. on the ability of United States-based would be 47.4 days. Applying an Many factors, including factors outside enterprises to compete with foreign- average daily cost, the paper estimated of the scope of the final rulemaking that based enterprises in domestic and additional detention costs of cannot be predicted (such as future export markets. 5 U.S.C. 804(2). approximately $1.24 billion annually. congressional appropriations) or are Determinations by OMB under the CRA Additionally, the paper assumed that presently too speculative, would need to are not subject to judicial review. 5 ICE would need to acquire new facilities be considered by DHS prior to opening U.S.C. 805. or beds in either scenario one or two, new detention space. For example, DHS This regulation does not represent a and it estimated that cost to be between decisions to increase FRC capacity decision on whether and in which $72 million and $520 million. It did so would consider the costs associated circumstances to detain families for by modeling its anticipated daily with housing families and the longer periods of time, though it does allow for such a decision to be made. detention populations from the availability of future Congressional scenarios above, factoring out the Such decisions depend on operational appropriations. current detention capacity, and then and other considerations outside the This commenter’s analysis makes estimating the number of new beds scope of this regulation. For instance, assumptions about the average length of needed to house the number of DHS notes that it recently made the stay, the population to be detained, and detainees it projected under each of the decision to use Karnes FRC for the the need for and size of additional two scenarios. Using the cost of detention of single adult women facilities, that ICE cannot reliably converting the Karnes facility and the temporarily to deal with the ongoing predict due to other factors outside the opening of the Dilley facility as migration influx. scope of this rulemaking, as discussed baselines, the paper estimated ICE While DHS cannot conclusively in the NPRM at 83 FR 45518 and 83 FR would need to spend between $72 determine the impact on detention costs million and $104 million in one-time 45519. The large spike in the number of due to factors outside of the scope of startup costs to increase detention family units apprehended or found this regulation, beginning with the capacity for scenario one. For scenario inadmissible at the Southwest Border fluctuating number of families two, the paper estimated that range to be since the publication of the proposed apprehended at the Southwest border, it between $468 million and $520 million. rule underscores the difficulties in does acknowledge the three existing The paper concluded that as a result of reliably making quantitative estimates FRCs could potentially reach capacity as the proposed rule, DHS would spend in this space. For all the reasons a result of additional or longer detention between $2 billion and $12.9 billion discussed above, DHS declines to for certain individuals. There are many over a decade. incorporate in this final rule the factors that would be considered in Response. While DHS appreciates the commenter’s proposed assumptions opening a new FRC or expanding a paper’s input and further analysis, DHS about the average length of stay, the current FRC, some of which are outside does not believe that it supports a increased number of family units held at the scope of this regulation, such as reliable quantified estimate. For FRCs, and the increased number of beds whether such a facility would be example, the paper used average length needed as a result of this rule. appropriate based on the population of of stay data from FY 2014 to assume the Changes to Final Rule aliens crossing the border, anticipated average length of stay after this rule capacity, projected average daily would be 47.4 days, despite DHS’s As discussed previously, the population, competing detention needs explanation in the NPRM that the Departments now consider this rule to for non-family populations, and average length of stay in the past is not be economically significant. projected costs. Moreover, such a a reliable source for future projections 14. Congressional Review Act decision depends on receiving because it reflects other intervening additional resources from Congress, and policy decisions not directly affected by Public Comments and Response ICE has to balance the detention of this rule. Additionally, the paper Comments. Relying on the same families with the detention and removal assumes that all family units will have position paper discussed above, many of single adults. If bed space were their average length of stay increased as commenters stated that the new costs of increased following this rule, the cost a result of this rule, but the proposed the rule would exceed $100 million would depend on the type of facility, rule explained that generally only annually, and it thus constitutes a major facility size, location, and a number of

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other variables. However, ICE notes as not take into account any other education cost). DHS discusses an example that an additional 960 beds functions of ORR. increased variable costs at these FRCs in at Dilley would cost approximately $80 Commenters implored HHS to the NPRM and in the E.O. 12866 section million. provide a justification that the proposed of this final rule. A cost analysis of the While Executive Order 12866 has a rule does not create any significant new zero-tolerance policy is not part of the standard of whether the rule may have costs. scope of this rulemaking. The fixed an impact of $100 million or more in Commenters stated that DHS costs for current FRCs would generally any given year, the CRA standard is conceded that the proposed regulations not change as a result of additional or whether a rule has or is likely to have could lead to ‘‘additional or longer longer detention for some families. If an impact of $100 million or more. In detention for certain minors’’ and that ICE awarded additional contracts for the vast majority of cases, if a rule is the Departments could not evade their expanded bed space as a result of this economically significant it is also major. responsibility to assess the economic rule, ICE would also incur additional In this case, however, given budget and other impacts of the proposal by fixed costs and variable costs. uncertainties, ICE’s overall need to referring to uncertainties largely of its DHS disagrees that this rule need prioritize bed space for operational own making. Various commenters stated account for the social economic impacts considerations (such as the recent use of the Departments should have of indefinite detention and the Karnes FRC for single adult female considered the additional costs of maltreatment, because this rule will not detention), and other operational providing education, food, medical care, result in either indefinite detention or flexibilities left in place under the rule, and other services families in prolonged maltreatment of minors in DHS custody. detention. it does not appear likely that this rule While this rule may result in some Three commenters requested that will result in an economic impact of minors being detained for a longer ORR specifically look into the cost of period of time, that detention (like the $100 million or more. The Office of housing children at its secure facilities Information and Regulatory Affairs has detention that currently occurs) will like Yolo County Juvenile Detention occur with those minors’ parents or thus determined that this rule is not Facility, which can be significantly major under 5 U.S.C 805. legal guardians and will be consistent more expensive than shelter with both the statutory frameworks Changes to Final Rule placements. governing detention and the DHS Others said that the Departments policies for parole of aliens, including Based in part on the developments should quantify the social costs of care family units who have demonstrated a discussed above, OIRA has determined for the children who may experience credible fear. Such detention is also that this rule is economically trauma as a result of indefinite consistent with the FSA’s recognition significant. detention, including the potential that the government may need to detain 15. Cost Analysis lifetime economic burden for children minors to secure their timely who experienced maltreatment, which appearance in immigration proceedings Comments and responses pertaining one commenter estimated to cost $124 or to ensure their safety, as has been to the Departments’ costs analysis, costs billion. underscored by the significant numbers to taxpayers, data, and proposed Another commenter estimated that of final orders of removal that have alternatives follow. the cost to detain migrant children recently been entered in absentia for Public Comments and Response would be similar to the cost to family units. Neither Congress nor the incarcerate an juvenile, which the Flores court has ever taken the position Many commenters objected that the commenter asserted, without supporting that detention of minors is per se Departments did not provide an detail, to be $148,767 per year, though maltreatment; to the contrary, both the estimated total cost for the proposed the commenter also added that infants immigration statutes and the FSA rule. Other commenters added that and toddlers would require additional recognize that detention may be various issues should have been costs. appropriate in some circumstances. And addressed in the rule’s cost benefit Commenters stated the Departments any detention carried out by DHS is analysis, such as the impact to detention should also have developed a cost done while immigration proceedings are costs, the need to quantify benefits, and analysis of the zero-tolerance policy for ongoing or removal orders effectuated; other generalized statements about the each state it impacted and the cost of DHS is not in the business of indefinite added cost that would result from the the proposed new alternative licensing detention and nothing in this rule proposed rule. Some commenters and auditing process for DHS facilities. authorizes it to be. mistakenly suggested that the NPRM Response. The cost for education, Families and minors often arrive at concluded that there would be no food, medical care, unique care needs the border having faced trauma in their additional costs due to the proposed for infants and toddlers, or other journey, and these are costs not rule. services families are part of the current attributed to this rule. Although DHS operational costs described in the a. Costs Not Included in the Analysis numerous commenters have proffered baseline of the rule. DHS agrees that arguments and evidence about potential Comments. Multiple commenters there will be additional costs resulting trauma that may result from suggested that the final rule should not from additional or longer detention for immigration detention itself, Congress proceed until HHS re-analyzes the cost some families, as discussed in the has already made a judgment that of imposing the final rule. They said it proposed rule and in the E.O. 12866 detention of alien minors in some could cost ORR as much as $800/day to section of this rule. Although current circumstances is appropriate. This rule house a UAC and thus, even without FRCs are largely funded through fixed- merely facilitates DHS’s efforts to increase in the number of UACs housed price agreements and thus generally are comply with that judgment while in ORR shelters, it would cost ORR not dependent on the number of beds maintaining the discretion that DHS has more than $5.1 million a day to house filled, there are some variable costs long exercised to parole families. DHS UACs, or $1.87 billion annually. This is added on a monthly basis that depend recognizes that detention and custody more than $800 million beyond the on the number of individuals held at may have negative impacts for some requested amount for FY 2019, and does certain FRCs (e.g. a per student, per-day individuals, but as experience has

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shown a high rate of absconding for set rules (in the CFR), such as the ability used to effectively enforce immigration family units, detention is an important for the Departments to move from consequences. If bed space were enforcement tool. DHS notes that this judicial governance via a settlement increased as a result of this rule, the cost final rule does not mandate detention agreement to executive governance via would depend on the type of facility, for all family units; on the contrary, regulation. Under the FSA, the facility size, location, and a number of parole will be considered for all minors government operates in an uncertain other variables. ICE notes as an example in detention, and the minor’s well-being environment subject to future court that a buildout of 960 beds at Dilley will be considered when determining interpretations of the FSA that may be would cost approximately $80 million. whether release may be appropriate. difficult or operationally impractical to Because this rule codifies current implement or could otherwise hamper d. Increased Length of Detention and HHS operations, including those operations. With the regulations, DHS Increased Detention Costs regarding secure HHS facilities and and HHS, along with members of the Comments. Some commenters stated UAC health-related costs, HHS public, would have certainty as to the the rule would result in longer anticipates no significant cost effect agencies’ legal obligations. detention periods and an increased from this rule. (HHS notes that the costs After considering the relevant factors, number of families detained. The for implementing the 810 hearings is DHS believes the benefits of this rule commenters noted that immigration described later in this rule and could justify the costs. ICE’s objective and cases are currently waiting for review an average $250,000.) Rather, the primary mission is to enforce immigration laws average of 721 days, or multiple years, cost driver for HHS is the migration and effectuate removals. As discussed and immigrants would stay in detention patterns that influence the number of previously, the in absentia rate from during the process. children referred to HHS and the rate at EOIR of family unit members with One commenter said that even minors which HHS discharges children to completed cases that started at an FRC in expedited removal proceedings could sponsors. Neither of those factors are from January 1, 2014 through March 31, experience extended periods of influenced by this rule. 2019 has been approximately 43 detention based on the availability of Additionally, DHS currently audits its percent. DHS OIS has found that when asylum officers to conduct the credible- FRCs in how they meet the standards of looking at all family unit aliens fear interview, the time to obtain a its Family Residential Standards and encountered at the Southwest Border review from an immigration judge for a will continue to use this existing from FY 2014 through FY 2018, the in negative decision, and delays in filing a process, so that cost is included in the absentia rate for completed cases as of Notice to Appear. Another commenter baseline of the rule and would not the end of FY 2018 was 66 percent. said that detaining families during the change as a result of the new licensing Restrictions placed on ICE’s ability to entirety of their immigration process. The new licensing process will detain families at FRCs through the proceedings, would likely cause the not change the standards used in the pendency of their removal proceedings expensive costs of family detention to audits and will not result in new costs. have stymied the effectiveness of FRCs skyrocket by $2 billion at the low end, as an immigration enforcement tool. The b. Benefits Analysis and as much as $12.9 billion at the high costs associated with this rule will thus end. Comments. Commenters maintained ensure family detention remains an that the benefits discussed in the effective enforcement tool (NPRM at 83 Response. DHS agrees that this rule proposed rule do not justify the costs. A FR 45520). The rule will thereby may result in longer detention of some commenter stated the benefits described contribute to public safety and maintain minors, and their accompanying parent in the proposed rule are not tangible the integrity of the U.S. immigration or legal guardian in FRCs as discussed benefits of implementing the rule and system by allowing ICE to better enforce in the proposed rule. But DHS continues that any accounting of the benefits immigration laws and effectuate to believe that the average effect of this should include a contrasting of the removals. rule on the length of stay cannot be current costs such as an estimate of the predicted using historical data because medical attention required for families c. Cost of New FRC of many factors, such as the number of and juveniles who DHS has Comments. Commenters stated that arriving family units in a facility at a apprehended, and how many would be DHS would need to increase the given day, the timing and outcome of dis-incentivized by the proposed rule to capacity of its current facilities to detain immigration court proceedings before an attempt entry to the United States. One families, resulting in the acquisition or immigration judge, whether an commenter stated that although the construction of a new FRC, and the cost individual is eligible for and granted proposed regulation claims to promote of which was not specified in the parole or bond, issuance of travel family unity, it is missing current NPRM. documents by foreign governments, ‘‘baseline’’ data on family unity (i.e., Response. In the proposed rule, ICE transportation schedule and availability, how often accompanied minors are said at that time it was unable to the availability of bed space in an FRC, released with their parents, versus to a determine with certainty how the a family’s composition (for instance, relative or family friend). number of FRCs will change due to this Dilley currently only houses families Response. DHS included a qualitative rule because of the factors discussed in with female heads of household, Karnes explanation of the benefits of this rule the NPRM at 83 FR 45519, such as is currently holding single adults, but in the NPRM at 83 FR 45520. The whether a such a facility would be was previously designated for families primary purpose of the rule is to ensure appropriate based on the population of with male heads of household), and that applicable regulations reflect the aliens crossing the border, anticipated other laws, regulations, guidance, and current conditions of DHS detention, capacity, projected average daily policies regarding removal not subject to release, and treatment of minors and population, projected costs, and this rule (NPRM at 83 FR 45518). In UACs, in accordance with the relevant available funding from Congress. ICE is addition, the average length of stay in and substantive terms of the FSA, the still unable to determine how the the past, prior to the court decisions in HSA, and the TVPRA, as well as number of FRCs may change due to the 2015 and 2017, is not a reliable source changed circumstances and operational rule. Instead, this rule allows for the for future projections because it reflects experience. There is a benefit to having possibility of the existing FRCs to be other intervening policy decisions made

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but that will not be directly affected by who could provide facilities that would the rate at which HHS discharges this rule (NPRM at 83 FR 45518). adhere to the proposed licensing children to sponsors, and neither of standards. these factors is influenced by this rule. e. Population in Detention Is Greater Lastly, in response to the request for Than Estimated comments, on calculating costs to the g. Scope of Impact Should Include Comments. Commenters stated the government and individuals and on Parents proposed rule would result in more costs for 810 hearings, commenters Comments. A commenter stated the families and minors being detained, added that the variables DHS sought data presented in Table 12 of the NPRM citing data about the increase in CBP comment on are under DHS’s control. at 83 FR 45519, estimating the number family unit apprehensions from 14,855 Response. DHS explained in the of minors likely to experience an at the Southwest border in FY 2013 to proposed rule the many factors that extended detention period, was 77,802 in FY 2018. Another commenter would influence total costs are not inaccurate. The commenter explained cited from an article in the New York within government—particularly the that it was only because of the FSA Times that said since the summer of executive branch’s—control. DHS licensing requirement that the 99 2017, the number of migrant children described and monetized where percent of the detained population in being detained increased to 12,800, possible the types of costs that would FRCs estimated in the NPRM were which was described as a concern given result from this rule. DHS provided the released, and allowing DHS-licensed the proposal to detain more children. per-person, per-day variable costs that facilities could prolong detention. In Commenters lamented that HHS had DHS would incur as a result of addition, the commenter stated that failed to adjust its UAC residency additional or longer detention for DHS had not calculated the costs of growth rate or adjust any of the costs certain minors and their accompanying increased detention of parents in the associated with increased UAC in the adult. DHS also provided an estimate of rule. ORR system. The commenters claimed the number of minors who in FY 2017 Response. DHS agrees that Table 12 of that HHS would need to shift essential comprised the groups of aliens who the NPRM at 83 FR 45519 represents resources away from their appropriated would likely have been detained longer minors only, and stated as such in the purpose to make up for the lack of at an FRC had this rule been in effect. title of the table: ‘‘FY 2017 Minors at funding. In this final rule DHS has added the FRCs Who Went Through Credible Fear Response. While the urgent number of such minors for FY 2018. But Screening Process.’’ The FSA only humanitarian crisis at the border DHS cannot provide a reliable forecast applies to juveniles. This rule parallels continues, the population in DHS of the future number of such minors, the the FSA and is principally concerned custody will continue to change. But availability of bed space in an with minors. The adults detained at this rule will not result in prolonged environment of finite resources, or the FRCs are included in the number of detention of all family unit members increased length of stay, and both are book-ins (Table 9), average length of encountered by CBP; as discussed necessary to calculate a total cost for stay (Table 10), and release reasons previously, generally only certain increased detention costs. DHS also (Table 11). groups of aliens are likely to have their cannot say with certainty if this rule With respect to the 99 percent of the length of stay in an ICE FRC increased will result in an increase in family beds. 14,993 minors who were found to have as a result of this rule, among other DHS notes that some commenters credible fear and released on parole or factors. have used unsupported assumptions on their own recognizance, DHS HHS reiterates that, aside from about the important cost drivers of this disagrees with the commenter’s 410.810 hearings for which HHS will rule and then applied such assumptions assertion that they were released solely incur some initial start-up costs, to the per-person, per-day costs in order due to the practice of applying a 20-day estimated at an average of $250,000, the to calculate a total cost. These limit for unlicensed facilities; other rule codifies current HHS operations, commenters have not calculated a total factors were relevant to those including regarding secure HHS cost of the rule. As previously determinations, including limitations on facilities as well as UAC health-related explained, DHS is unable to forecast the bed space and decisions regarding costs. There is no significant cost effect future total number of such minors that release on bond or parole. This rule from the rule for HHS. Rather, the may experience additional or longer generally would not change how DHS primary cost drivers for HHS are detention as a result of this rule or for exercises its authority to release minors migration patterns that influence the how much longer individuals may be with credible fear. The analysis in this number of UACs referred to HHS and detained because there are many other final rule has been updated with FY the rate at which HHS discharges variables that may affect such estimates. 2018 data. See the E.O. 12866 section of children to sponsors, and—neither of In addition, DHS does not know how this final rule. DHS’s estimates of the these factors is influenced by this rule. this rule might impact the number of impact of the rule on detention of FRCs as factors outside of the scope of families are discussed above. f. Rule Should Have Total Cost Estimate the rulemaking cannot be predicted Comments. Many commenters stated (such as future congressional Changes to Final Rule the NPRM should have included a total appropriations). Consequently, The Departments decline to amend cost estimate. A few commenters stated providing a reliable total cost estimate the final rule analysis as proposed by the Department could have been made of this rule is not possible given the commenters. a cost estimate with the available data many factors outside of the on detention operations discussed in the government’s control. h. Costs to Taxpayers NPRM, as was done by a third party This rule codifies current HHS Comments. Multiple commenters who applied the variable costs to operations—with the exception of stated the proposal’s use of long-term estimate total detention costs. Another § 410.810—so there is no significant cost detention would be expensive and commenter indicated DHS has access to effect from the rule for HHS. Rather, the burdensome for taxpayers, significantly data sources that would have enabled primary cost drivers for HHS are expanding the Federal deficit. Many DHS to provide a total cost estimate, or migration patterns that influence the commenters stated that this use of it could have consulted with vendors number of children referred to HHS and taxpayer money would be wasteful, a

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misuse of financial resources, and the meaning and enforcement of the regulations, pursuant to the 2001 unnecessary given the less costly FSA for many years, including six Stipulation. alternatives to detention available Some separate motions to enforce, one motion Changes to Final Rule commenters stated that they did not for relief, and one temporary restraining want their or any other American’s tax order. Recent litigation regarding the DHS declines to amend the final rule dollars, to pay for the detention of FSA began in February 2015 after the analysis as proposed by commenters. people seeking a better life. Federal Government’s response to the j. GAO Report on Improving Cost Several commenters stated the surge of aliens crossing the U.S.-Mexico Estimates for Detention government should re-direct those border in 2014, including the use of resources toward addressing root causes family detention at FRCs. DHS faces Comments. Commenters suggested of child and family migration from perpetual, recurring, and open-ended that DHS implement the U.S. Central America. This commenter litigation over the FSA and its Government Accountability Office recommended re-establishing the implementation, especially in light of (GAO) guidelines for reliable cost Central American Minors program the judicial determination that the FSA estimates of detention resources. The instead of expanding detention capacity. applies to accompanied minors, and the commenters stated that GAO previously Several commenters raised specific government anticipates litigation related identified errors and inconsistencies in fiscal concerns with utilizing soft-sided to this rulemaking. Indeed, the Flores ICE’s budgets and estimated costs and structures for influx purposes and Plaintiffs already filed a motion alleging made recommendations for transferring funds for that purpose from anticipatory breach of the FSA based on improvements. The commenters the National Institutes of Health, Head the publication of the NPRM. See Flores suggested that DHS improve its process Start, Centers for Disease Control, or the v. Barr, No. 85–4544 (C.D. Cal.) (ECF for estimating costs of detention National Cancer Institute. No. 516). The court deferred ruling on resources before promulgating Response. DHS acknowledges that the motion until the publication of final regulations that would result in the this rule could increase costs to regulations. Id. at ECF No. 525. expansion of its existing programs. taxpayers, such as higher variable costs Nevertheless, the clearest path forward Response. As explained above, ICE is at FRCs, but believes the benefits of the to reduce the litigation burden and unable to estimate how the number of ability of ICE to effectuate removal and establish consistency with statutory law FRCs may change due to this rule alone. carry out its mission justify the costs. and to enhance the sound There is no reliable method to estimate The agency publishes detailed budget administration of the immigration laws what number of families encountered reports of the operations and resources is through the promulgation of would be detained at an FRC, or for how required to fulfill its mission, including regulations, governing the subjects that long, due to factors outside of the scope the current costs of family detention and are committed to the authority of DHS of this rule, including the number of alternatives to detention. The agency and HHS, and to terminate the FSA, as families apprehended or found utilizes multiple types of resources in the FSA itself contemplates. Among inadmissible, the composition of the course of enforcing immigration other things, the promulgation of families, the need of bed space for laws as needed to maximize the use of regulations provides a single vehicle for detention of single adults (such as with its budget. further updates while allowing for the conversion of Karnes to a single The alternative uses of funds future modification to adapt to adult facility), funding, the need to suggested by commenters do not meet operational and legal changes and to balance the detention of families with the objectives of the proposed rule. As reflect appropriate input from the public the detention and removal of single circumstances change at the southern as provided for by the APA. adults, and outcomes from the credible border the agency can redirect resources As indicated in the NPRM, the fear process. However, this rule will in order to react in a timely manner. Departments considered not allow DHS to use existing FRCs HHS disagrees that using soft-sided promulgating this rule but ultimately effectively. As a result, some families structures during an influx necessitates concluded that continuing to operate will experience longer detention exercising the Secretary’s transfer absent regulatory action would likely periods, but—given finite resources and authority as described in the comments. require the Government to operate bed space—this also means that many Changes to Final Rule through non-regulatory means in an other families will experience less The Departments decline to amend uncertain environment subject to detention than they do in the status quo. unknown future court interpretations of the final rule analysis as proposed by Changes to Final Rule commenters. the FSA that may be difficult or operationally impracticable to Accordingly, DHS declines to change i. Comments Regarding the Cost of implement or could otherwise hamper the final rule analysis as proposed by Litigation operations. Failing to promulgate this commenters. Comments. Several commenters rule also would leave unaddressed the statutory amendments in the HSA and k. Comments on Additional Costs to stated that the proposed regulation will Sponsors be enjoined by the Federal courts. One TVPRA that have affected certain of these commenters stated that DHS is portions of the FSA. HHS, having not Comments. One commenter expressed ignoring the history of the last 30 years been an original party to the FSA but as concern that the proposed rule failed to and inviting expensive and time- a successor agency with respect to some account for the additional costs to HHS consuming litigation. of its requirements, will benefit from and to potential sponsors of UACs— Response. DHS notes that the original rules that clearly delineate ORR’s which the commenter characterized as complaint in Flores v. Meese, No. 85– responsibilities from that of other ‘‘astronomical’’—due to the additional 4544 (C.D. Cal.) was filed on July 11, Federal partners. burden on potential sponsors to secure 1985—more than 30 years ago. In 1996, Finally, DHS notes that legacy INS’s release of their children and the the parties entered into the FSA, which successors are obligated under the FSA increasing population of UACs in ORR was approved by the court on January to initiate action to publish the relevant custody resulting from the proposed 28, 1997. There has been litigation over and substantive terms of the FSA as rule.

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The commenter contended that the minors and UACs. Nothing in this rule Departments to carry out these statutory expanded definitions of ‘‘emergency’’ alters any aspect of government obligations in the light of operational and ‘‘influx,’’ along with recently contracting law. realities. Many of these objections promulgated sponsorship review DHS does not exclusively contract would be better addressed to Congress. procedures, will require sponsors to with for-profit entities. Changes to Final Rule spend more time and money to secure HHS currently contracts with one the release of children in HHS custody. private contractor to operate and The Departments declines to amend This commenter expressed concern that maintain an influx facility for UACs. the final rule in response to these the NPRM does not account for the Because this rule serves to implement comments. and codify both the FSA and other public burden caused by sponsors 16. Executive Order 13045 dropping out of the onerous existing practices under the HSA and sponsorship process or being rejected TVPRA, HHS does not anticipate that Public Comments and Response from sponsorship. publication of the rule would cause an Comments. One commenter agreed Response. The proposed regulations increase in costs, as compared to with the Departments’ assessment that for assessing a sponsor are consistent anticipated costs in the absence of a the proposed rule would not create an with the Departments’ current rule. environmental risk to children’s health operations and procedures for Changes to Final Rule or safety. This commenter stated that implementing the terms of the FSA, the the rule did not address the abuse and DHS and HHS decline to amend the HSA, and the TVPRA. As a result, there drugging of children at the Shenandoah final rule as proposed by commenters. are no new burdens to sponsors based Valley Juvenile Center or the Shiloh on this rule. Indeed, the DHS and HHS m. Recommendations To Redirect RTC (or at other detention facilities definitions of emergency and influx Resources around the country). This commenter substantively mirror the definition in cited two articles from the website of the FSA, and HHS’ sponsorship review Comments. Multiple commenters made alternative policy the National Center for Biotechnology procedures are part of the baseline costs Information, which is part of the United of existing operations. As a result, there recommendations they deemed a better use of resources, to resolve the States National Library of Medicine, and are no new burdens to sponsors based stated that the government’s own data on this rule. humanitarian crisis at the border. Some commenters proposed hiring shows that detaining children is a risk Changes to Final Rule additional immigration judges to to the children’s health and development. Without providing The Departments decline to amend address the backlog of cases and urged support or specifics, the commenter said the final rule analysis as proposed by the use of social workers and the that ‘‘the claim that detention is not a commenters. provision of legal services to assist asylum seekers. risk to children’s health or their safety l. Comments on Impact on Private Several commenters stated the is as false as it is absurd.’’ Detention Centers government should focus on addressing Response. E.O. 13045 applies to Comments. Various commenters said the root causes of migration from economically significant rules, and the that the rule was partially driven by Central America by providing additional Departments have now determined that private companies who would profit assistance in the region to strengthen this rule is economically significant. from the widened use of detention. the protection systems. They Executive Order 13045 addresses One commenter added that the highlighted the Central American environment health risks and safety government historically has prioritized Minors Program as a means of avoiding risks to children, which it defines as the profits of private companies ahead children from having to migrate and ‘‘risks to health or to safety that are of the care for immigrant families. As an make the dangerous journey without attributable to products or substances example of this profit motive, another any guarantee of admission. Some of that the child likely to come in contact commenter said that the GEO Group and these commenters also suggested with or ingest (such as air we breathe, its lobbyist attempted to have the Texas supporting infrastructure projects and the food we eat, the water we drink or legislature pass a bill that would have job creation in the countries migrants use for recreation, soil we live on the waived the standards for childcare are leaving or exploring solutions like products we use or are exposed.’’ The facilities, enabling the facility in Karnes the Marshall Plan, the American aid commenter does not reference any such County to hold families for longer package provided in 1948 to rebuild ‘‘products or substances.’’ The periods. Western Europe post World War II. Departments have determined that this Some commenters explicitly stated Another commenter stated the funds rule does not create an environmental they did not want for profit facilities to used for family detention would be health risk or safety risk that may be used, because it would lead to better spent on domestic programs to disproportionately affect children. The traumatized children, and families. benefit the American people such as rule is largely codifying the Response. The government is not infrastructure jobs, provide slots in a Departments’ current procedures and adopting this rule to increase any third- Head Start program, or fund healthcare policies for implementing the FSA, party’s profits. The government is for low income adults. HSA, and TVPRA. adopting this rule for the many reasons Response. These recommendations do Changes to Final Rule discussed above. This rule would not meet the objectives of the directly regulate DHS and HHS, rulemaking and are largely beyond its The Departments are not making indirectly affecting private entities to scope. DHS has statutory obligations to changes in the final rule in response to the extent that DHS or HHS contract fulfill with respect to immigration these comments. with them. As permitted by Federal law, enforcement and custody of minors, 17. Family Assessment DHS contracts with private contractors including detention in some and a local government to operate and circumstances. HHS’ statutory Public Comments and Response maintain FRCs, and with private obligations govern the care and custody Comments. One commenter disagreed contractors to provide transportation of of UACs. This rule will better enable the specifically with DHS’s assessment

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under section 654 of the Treasury referenced letters from mothers health and well-being. One commenter General Appropriations Act that the rule separated from their young children at stated that traumas experienced by will not have an impact on family well- the border of the United States where children are the most difficult to treat, being and might even ‘‘strengthen the they sought asylum about the traumatic particularly traumas that occurred stability of the family and the authority effects of such separation. before the child was able to talk about and rights of parents in the education, Some commenters believed that the his or her feelings. Commenters also nurture, and supervision of their trauma children experience from family referred to studies that show detained children. . . .’’ 83 FR at 45524. The separation and prolonged detention can children suffer from physical illnesses commenter relied on the finding of the turn into intergenerational trauma in such as sleep disorders, loss in appetite, U.S. Immigration and Customs families and cultural communities. headaches and abdominal pain in Enforcement’s Advisory Committee on Response. DHS is sympathetic to the addition to mental health illnesses such Family Residential Centers that difficulties created by family separation, as depression and post-traumatic stress ‘‘detention is generally neither especially to children. This is precisely disorder (PTSD). Several commenters appropriate nor necessary for families— why the government’s preference is to referred to a 2004 study conducted by and . . . detention or the separation of keep families together so that they can the Australian Human Rights families for purposes of immigration provide the necessary emotional Commission and Equal Opportunities enforcement or management are never support for each other as they go Commission that highlighted similar in the best interest of children.’’ through their immigration proceedings, negative developmental and physical Response. DHS has reviewed this and thus to have the option to keep a health consequences of detention for final rule in light of the comment family in detention as a unit, when children. received and in accordance with the detention rather than release is Another commenter referenced a requirements of section 654 of the warranted for a family unit. This rule statement by the United Nations High Treasury General Appropriations Act, aims to ameliorate the disparate Commissioner for Human Rights that 1999, Public Law 105–277. With respect treatment of a parent and minor in the states UNHCR is opposed to detention to the criteria specified in section immigration system under the FSA. of children for immigration reasons 654(c)(1), for DHS, the rule places a This rule does not address the because of the negative health impacts. priority on the stability of the family circumstances in which it may be Additional commenters wrote that and the authority and rights of parents necessary to separate a parent from his detention constitutes a type of adverse in the education, nurture, and or her child. For more on the services childhood experience (ACE) that can supervision of their children, within the provided by FRCs see Section V. A. 8. cause irreparable harm including immigration detention context, as Detention of Family Units above. negative health outcomes in adulthood, parents maintain parental rights and higher rates of mental health problems, Changes to Final Rule substance abuse, poorer educational supervision of their children within DHS is not making changes in the outcomes, and poorer vocational FRCs. This rule provides an option for final rule in response to these outcomes. Commenters also asserted families to stay together where comments. that detention can have a negative effect detention is required. With respect to on the academic, cognitive, and social family well-being, this final rule 19. Trauma development of children, leading to codifies current requirements of Public Comments and Response impaired or delayed cognitive settlement agreements, court orders, and development that continues after a child statutes. Comments. Similar to the comments discussed above, the Departments is released from detention. Commenters Changes to Final Rule received many comments about trauma cited several studies reaching similar conclusions. Several commenters also The Departments are not making associated with detention. Multiple wrote that the trauma experienced by changes in the final rule in response to commenters wrote that detaining children in detention can be passed this comment. children causes trauma, with some expressing the view that it amounts to through generations. 18. Family Separation abuse or child maltreatment and Commenters also wrote that detention negatively impacts family relationships Public Comments and Response violates prohibitions against torture and ill treatment under U.S. and because it undermines parental Comments. Commenters wrote about international law. authority and parental capacity to the long-lasting effects of family Many of these commenters referenced respond appropriately to children’s separation on children and their a policy statement by the American needs. families. Commenters stated that Academy of Pediatrics which stated Response. DHS understands that separating children from their parents ‘‘there is no evidence indicating that trauma is an issue for asylum-seekers causes toxic stress, which may place any time in detention is safe for and others who have entered the United children at risk of developing post- children,’’ and opined that ‘‘[q]ualitative States, and tries to mitigate it where traumatic stress disorder (PTSD) and reports about detained unaccompanied possible. But not all factors are in the substance abuse in later life. immigrant children in the United States control of DHS. For example, a study Many commenters stated that found high rates of post-traumatic stress conducted by Danish scientists found evidence-based research has shown that disorder, anxiety, depression, suicidal that relocating several times during the even a short period of family separation ideation, and other behavioral asylum process and the length of the is extremely harmful to infants and pendency of the asylum case problems.’’ 70 Another commenter wrote young children and a more prolonged contributed to the mental health issues that extending detention beyond 20 separation can result in depression, high experienced by asylum-seeking days increases the risk for toxic stress levels of anxiety and other symptoms children, even children detained with which can negatively impact the child’s including incessant crying, lack of their parents in Red Cross facilities. The appetite, failure to achieve cognitive 70 American Academy of Pediatrics, ‘‘Detention of study also stated that additional studies and social learning, and loss of Immigrant Children’’ Pediatrics Volume 139, are needed to determine if other factors previously acquired skills. Commenters number 4, Apr. 2017. such as parental stress and previous

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trauma cause additional trauma for domestic violence, grief and loss, of forced displacement, migration, and those seeking asylum.71 parenting skills and information childhood trauma and conduct holistic, Consistent with the recommendations regarding minors in a residential setting. child-centered assessments of the of scientists, ICE provides medical care For minors there is a focus on Bullying medical and behavioral health needs of and educational services in ICE Prevention and Social Skills Training. UACs. Care providers must also facilities. CBP also provides medical Each facility works with a local school understand the developmental stages of screening to all minors and UACs who providing education for each grade level children and adolescents and how the enter CBP custody along the southwest along with IEP’s if needed. Minors stressors of temporary government border. CBP’s medical screenings are attend class and have access to both custody affect children at each stage. designed to ensure that any minors or indoor and outdoor recreation. There is UAC clinical services should be UACs with emergent health needs are space for minors to play and explore in evidence-based therapeutic immediately referred for appropriate order to properly socialize among their interventions and be structured so that emergency care. It is difficult to gauge peers. In a case where there may be clinicians have continuous supervision how much experiences in the juvenile’s abuse allegations, an investigation is and access to the support they need as home country and the harsh trip to the documented under PREA Protocol and a they work with vulnerable and United States, which is ripe with minor will have both a medical and traumatized children and youth. exploitation and abuse, affected a mental health evaluation. If necessary, DHS acknowledges that it must try to particular juvenile before he or she ever Child Protective Services (CPS) will be balance its mission of promoting arrives at the border. But DHS has taken contacted to do a full investigation. The homeland security and public safety several important steps to address these parent and the minor will both be against the vulnerabilities of many issues. offered treatment as required or not by aliens in its custody, including juveniles The research on child detention states CPS. Children’s Advocacy Centers will in particular. HHS is committed to that children who are detained are at a also be contacted to aid the minor and continuously reassessing its policies, significantly higher rate of parent through the legal process and the procedures, and operations to align with psychological distress. Multiple forensic interview. state-of-the-science research and best accommodations for a Family Centered In addition, all minors along with practices in child welfare service and Trauma Informed Approach are their accompanying parent or legal provision. being implemented within the ICE guardian caregiver are seen weekly by a Changes to Final Rule residential facilities in order to decrease licensed mental health care provider the effects of trauma on minors in through ‘‘Weekly Mental Health The Departments are not making detention. Checks.’’ Mental health providers changes in the final rule in response to Research of the Australian include psychiatrists, clinical social these comments. Psychological Society (APS) workers and psychologists and pediatricians. VI. Statutory and Regulatory recommends that children and families Requirements should be accommodated separately Everyone entering an FRC is screened from other detainees. Appropriate for both physical and mental health A. Executive Orders 12866 and 13563: resources with indoor and outdoor issues and trauma. ICE also maintains Regulatory Review and Executive Order spaces should be provided for children. mental health professionals on staff to 13771 conduct both individual and group The APS suggests that mental health Executive Orders 12866 (‘‘Regulatory services be offered to detainees, sessions to help residents with their trauma issues. Additionally, FRCs Planning and Review’’) and 13563 including children, which includes provide safe settings for minors to (‘‘Improving Regulation and Regulatory access to appropriately trained clinical access educational services year round. Review’’) direct agencies to assess the providers. Educational opportunities DHS believes affording parents full costs and benefits of available regulatory should be available, along with medical control over their children at FRCs and alternatives and, if regulation is care. respecting their rights as parents can necessary, to select regulatory ICE currently has three facilities that also play a role in addressing this approaches that maximize net benefits house alien family units. From the problem. (including potential economic, outset, minors in FRCs are detained DHS argues that this rule is about environmental, public health and safety along with their parent or legal ensuring the care of minors in effects, distributive impacts, and guardian, who can provide care and government custody while enforcing the equity). Executive Order 13563 support. DHS believes that affording immigration laws as laid out by emphasizes the importance of parents full control over their children Congress, in light of the FSA and quantifying both costs and benefits, of at FRCs and respecting their rights as operational realities. And those reducing costs, of harmonizing rules, parents plays an important role in immigration laws set out detention as a and of promoting flexibility. Executive minimizing and addressing trauma. key component of immigration Order 13771 (‘‘Reducing Regulation and Furthermore, all ICE-detained enforcement. Enforcement of the Controlling Regulatory Costs’’) directs individuals have access to care on a 24/ immigration laws is a core DHS mission agencies to reduce regulation and 7 basis. Mental health services include that cannot be ignored and must be control regulatory costs and provides crisis-intervention, various therapeutic balanced with the needs to ensure the that ‘‘for every one new regulation treatment modalities to include, talk care of minors in DHS custody and issued, at least two prior regulations be therapy, educational group behavior relevant legal obligations. identified for elimination, and that the modification, medication treatment and Separately, as the nation’s leading cost of planned regulations be prudently case management services. Also immigrant child welfare agency, ORR is managed and controlled through a included are groups on trauma, deeply committed to the physical and budgeting process.’’ emotional safety and wellbeing of all This rule has been designated a 71 Signe S. Nielsen, ‘‘Mental health among ‘‘significant regulatory action’’ that is children seeking asylum in Denmark—the effect of UACs in its temporary care. ORR- length of stay and number of relocations: A cross- funded care providers must be aware of economically significant under section sectional study,’’ BMC Public Health, Aug. 19, 2008. the physical and psychological impacts 3(f)(1) of Executive Order 12866.

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Accordingly, this rule has been In § 236.3(f)(4)(i), DHS clarifies that and thus will not result in new costs to reviewed by the Office of Management UACs will generally not be transported the rule. and Budget (OMB). This rule is a with unrelated detained adults, subject Section 236.3(j) and (n) now provide regulatory action per Executive Order to certain exceptions spelled out in the that DHS is not precluded from 13771. rule. This is a clarification and thus releasing a minor who is not a UAC to does not add any new costs to the rule. someone other than a parent or legal Changes From the Proposed Rule In § 236.3(g)(1)(i) regarding DHS guardian, specifically a brother, sister, In response to commenters, DHS has procedures in the apprehension and aunt, uncle, or grandparent who is not made the following changes to the processing of minors or UACs, Notice of in detention and is otherwise available proposed rule in this final rule. Most of Rights and Request for Disposition, DHS to provide care and physical custody. these changes are points of clarification is removing a qualification on the DHS has added new paragraphs at and do not add costs or change the requirement that the notice be read and § 236.3(j)(2)–(4) to identify the specific impact of the rule. Section 212.5(b) now explained to a minor or UAC in a statutory and regulatory provisions that considers that DHS is not precluded language and manner the minor or UAC govern the custody and/or release of from releasing a minor who is not a understands if the minor is believed to non-UAC minors in DHS custody based UAC to someone other than a parent or be under 14 or is unable to comprehend on the type and status of immigration legal guardian, specifically a brother, the information on the form. DHS had proceedings. DHS has added a new § 236.3(j)(4) to sister, aunt, uncle, or grandparent who proposed to do so only for minors or state clearly that the Department will is not in detention. UACs believed to be less than 14 years consider parole for all minors in its Section 236.3(b)(2), which defines of age, or unable to comprehend the custody pursuant to section Special Needs Minor, used the term information contained in the Form I– 235(b)(1)(B)(ii) of the INA or 8 CFR ‘‘retardation.’’ Commenters noted this 770. DHS is changing this language to 235.3(c) and that paroling such minors was an outdated term, and DHS agrees make it clear that the form will be who do not present a safety risk or risk to replace it with ‘‘intellectual provided, read, or explained to all of absconding will generally serve an disability.’’ This clarification does not minors and UACs in a language and urgent humanitarian reason. DHS adds add new costs to the rule. manner that they understand. DHS is that it may also consider aggregate and Section 236.3(b)(9), which defines making this change to avoid confusion historical data, officer experience, Licensed Facility, includes the related to DHS’s legal obligations statistical information, or any other requirement that DHS employ third regarding this notice while still probative information in determining parties to conduct audits of FRCs to acknowledging that it may be necessary whether detention of a minor is required ensure compliance with the Family to implement slightly different to secure the minor’s timely appearance Residential Standards. Commenters procedures depending on the particular before DHS or the immigration court. stated that DHS has previously not minor or UAC’s age and other This change is a point of clarification on shared the results of such audits. characteristics. This change will result the process for discretionary release and Although ICE has shared these results in some additional operational burden. does not add new costs or change the publicly, DHS is expressly providing Specifically, while the Form I–770 is impact of the rule. that ‘‘DHS will make the results of these already issued to all minors and UACs, DHS clarifies in § 236.3(o) that the audits publicly available.’’ DHS also the updated language makes clear that Juvenile Coordinator’s duty to collect adds to the final rule that the audits of the form will both be issued to all statistics is in addition to the licensed facilities will take place at the minors and UACs, and that CBP has requirement to monitor compliance opening of a facility and take place on some obligation to make sure that all with the terms of the regulations. This an ongoing basis. Since this procedure minors and UACs understand the form’s is a clarification point and does not add is already in practice, there is minimal contents. The exact method by which new costs or change the impact of the burden from this change. this will happen may vary based on the rule. In § 236.3(b)(11), which defines a particular minor or UAC. Thus, this In response to comments on the status Non-Secure Facility, DHS agrees with language will require some degree of of the Dilley and Karnes FRCs to be non- commenters that a non-secure facility operational change, although CBP is not secure, ICE has agreed to add several means a facility that meets the able to quantify the operational burden. new points of egress along their definition of non-secure under state law In § 236.3(g)(2)(i) regarding DHS perimeters by September 30, 2019. The in the state in which the facility is custodial care immediately following estimated construction cost at Dilley is located, as was intended by the apprehension, the proposed rule that between $5,000 and $6,000. There is no language of the proposed rule, and is UACs ‘‘may be housed with an additional cost to DHS for this adding ‘‘under state law’’ to the unrelated adult for no more than 24 construction at Karnes, and the private definition to clarify this point. This hours except in the case of an contractor, the GEO Group, did not clarification does not add new costs to emergency or exigent circumstances.’’ provide an estimate of the cost they the rule. Commenters objected to the use of the would incur for adding the new points In § 236.3(f)(1) regarding transfer of term ‘‘exigent circumstances’’ as it was of egress and thus DHS is unable to UACs from DHS to HHS, DHS agrees to not defined. DHS believes ‘‘exigent quantify this cost. amend the proposed regulatory text to circumstances’’ because it is redundant DHS agrees with commenters that this clarify that a UAC from a contiguous to ‘‘emergency’’ and thus agrees to rule may result in costs, benefits, or country who is not permitted to delete the term. This is a clarification transfers in excess of $100 million in withdraw his or her application for and does not add new costs to the rule. any given year and therefore is admission or for whom no In § 236.3(i)(4), commenters requested economically significant. DHS stated in determination can be made within 48 additional language tracking the the proposed rule that the cost of this hours of apprehension, will be verbatim text of FSA Ex. 1. In response rule depended on a number of unknown immediately transferred to HHS. This to these comments, DHS added language factors, including the population of clarification does not add new costs to of FSA Ex. 1 paragraph B and C. These aliens crossing the border. Since the the rule. standards have always been in place proposed rule was published, DHS has

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seen a large spike in the number of Interim Final Rule (IFR) on the for ORR’s UAC Program since its family units apprehended or found Standards to Prevent, Detect, and inception. inadmissible at the Southwest Border. Respond to Sexual Abuse and Sexual The FSA itself anticipated that its As of June 2019, with three months Harassment Involving Unaccompanied terms would be implemented through remaining in FY 2019, CBP has Children. The IFR states, ‘‘Care provider Federal regulations issued in apprehended over 390,000 family units facilities must develop, document, and accordance with the APA: ‘‘Within 120 between ports of entry on the Southwest make their best effort to comply with a days of the final district court approval Border, as compared to 107,212 family staffing plan that provides for adequate of this Agreement, the INS shall initiate units in all of FY 2018.72 Consequently, levels of staffing, and, where applicable action to publish the relevant and as noted in the NPRM, because the costs under State and local licensing substantive terms of this Agreement as of this rule are dependent on a number standards, video monitoring, to protect a Service regulation. The final of factors outside of this rulemaking, UCs from sexual abuse and sexual regulations shall not be inconsistent some of which have changed since the harassment.’’ This provision applies to with the terms of this Agreement.’’ This NPRM, the Departments now consider transfers as well. rule aims to codify the terms of the FSA this rule to be economically significant. In § 410.700 relating to age as envisioned by the parties to the In response to commenters, HHS has determination decisions, HHS will add settlement more than 20 years ago, made the following changes to the ‘‘totality of the evidence and taking into account current proposed rule in this final rule. Most of circumstances’’ language so that the age circumstances and changes in the law these changes are points of clarification determinations decisions by HHS and since that time. The original FSA had a and do not add costs or change the DHS are based on the same standard, as termination clause that terminated the impact of the rule. required by law (see 8 U.S.C. agreement the earlier of five years from Section 410.101, which defines 1232(b)(4)). This addition does not add court approval of the agreement, or Special Needs Minor, included the term costs to the rule. three years after the court determines ‘‘retardation.’’ Commenters noted this The NPRM proposed to include that the INS is in substantial compliance was an outdated term, and HHS agrees bond hearings for UACs be transferred with the agreement. In 2001, the parties to replace it with ‘‘intellectual from the immigration courts to a hearing modified the agreement and agreed that disability.’’ This clarification does not officer housed within HHS, where the it would terminate 45 days after the add new costs to the rule. burden would be on the UAC to show promulgation of regulations In § 410.203, HHS is making a change that s/he will not be a danger to the implementing the agreement. By to make more explicit the fact that ORR community (or risk of flight) if released, codifying current requirements of the reviews placements of minors in secure using a preponderance of the evidence FSA and court orders enforcing terms of facilities on at least a monthly basis. standard. HHS declines to shift the the FSA, as well as relevant provisions HHS is also making a change to make ultimate burden of proof to itself. of the HSA and TVPRA, the more explicit the fact that, However, it clarifies that HHS bears the Departments are implementing the notwithstanding its ability under the burden of initial production, under intent of the FSA and make permanent rule to place UACs who are ‘‘otherwise which it must present evidence the requirements to protect children and a danger to self or others’’ in secure supporting its determination of the provide them with safe and sanitary placements, this provision does not UAC’s dangerousness or flight risk. The accommodations. The Federal abrogate any requirements to place UAC would bear the burden of Government’s care of minors and UACs UACs in the least restrictive setting persuasion, rebutting HHS’ evidence to has complied with the FSA and related appropriate to their age and special the hearing officer’s satisfaction under a court orders for more than 20 years, and needs. This clarification does not add preponderance of the evidence complies with the HSA and TVPRA. new costs to the rule. standard. The changes to the 810 The rule applies to minors and UACs In 45 CFR 410.600(a), HHS stated that hearing process do not add new costs to encountered by DHS, and in some cases, it would take all necessary precautions the rule in beyond those that will be their families. CBP and ICE encounter for the protection of UAC during incurred by the Department to perform minors and UACs in different manners. transportation with adults. This the hearings as envisioned in the NPRM. CBP generally encounters minors and UACs at the border. Generally, ICE language runs in contradiction to 45 1. Quantitative Background CFR 410.500(a), which states that ORR encounters minors either upon transfer The FSA has been in place for more does not transport UAC with adult from CBP to an FRC, or during interior than two decades and sets limits on the detainees. Therefore, the sentence from enforcement actions. length of time and conditions under 45 CFR 410.600(a) that reads, ‘‘ORR which children can be held in CBP takes all necessary precautions for the immigration detention. In 1985, two CBP’s facilities at Border Patrol protection of UACs during organizations filed a class action lawsuit stations and ports of entry (POEs) are transportation with adults,’’ will be on behalf of alien children detained by processing centers, designed for the struck from the final rule. This revision the former INS challenging procedures temporary holding of individuals. CBP’s does not add new costs to the rule. regarding the detention, treatment, and facilities are not designed to ORR notes that there will be instances release of children. After many years of accommodate large numbers of minors when UACs are transferred with adult litigation (including an appeal to the and UACs waiting for transfer to ICE or staff members. These situations are United States Supreme Court) and ORR, even for the limited period for covered under 45 CFR 411.13(a) of the advocacy (civil society organizations, which CBP generally expected to have custody of minors and UACs, 72 hours 72 See United States Border Patrol Total Family including human rights groups, faith- Unit Apprehensions By Month—FY 2013 through based institutions, political leaders, and or less. Although minors and UACs in FY 2018 at https://www.cbp.gov/sites/default/files/ concerned citizens) the parties reached CBP facilities are not provided the same assets/documents/2019-Mar/bp-total-monthly- a settlement in 1997. HHS assumed amenities that will be available to them family-units-sector-fy13-fy18.pdf (last visited May in longer-term facilities, all minors and 10, 2019). See also Southwest Border Migration FY responsibility of UACs and created, 2019 at https://www.cbp.gov/newsroom/stats/sw- within ORR, the UAC Program in 2003. UACs in CBP facilities are provided border-migration (last visited June 5, 2019). The FSA has served as the foundation access to safe and sanitary facilities;

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functioning toilets and sinks; food; unrelated adults; older, unrelated UACs the last three complete fiscal years. In drinking water; emergency medical are generally segregated by gender. FY 2018, CBP apprehended or assistance, as appropriate; and adequate Additionally, CBP provides medical encountered approximately 107,498 temperature control and ventilation. screening to all minors and UACs along alien minors or UACs. Apprehensions Minors and UACs are also provided the southwest border, and refers any or encounters in FY 2019 to date have access to basic hygiene items and clean minor or UAC with an emergent surpassed FY 2018 annual totals.73 The bedding, and CBP makes reasonable medical need to the hospital or other table below shows the annual number of efforts to provide minors and UACs nearby medical facility for appropriate accompanied minors (that is, minors with showers where approaching 48 emergency treatment. accompanied by their parent(s) or legal hours in custody, and clean clothes. To CBP has apprehended or encountered guardian(s)) and UACs CBP has ensure their safety and well-being, 65,593 minors accompanied by their apprehended or encountered in FYs UACs in CBP facilities are supervised parent(s) or legal guardian(s), and 2010 through 2018. and are generally segregated from 56,835 UACs on average annually for

TABLE 7—U.S. CUSTOMS AND BORDER PROTECTION ACCOMPANIED MINORS AND UNACCOMPANIED ALIEN CHILDREN NATIONWIDE APPREHENSIONS AND ENCOUNTERS FY 2010–FY 2018

Accompanied Fiscal year minors UACs Total

2010 ...... 22,937 19,234 42,171 2011 ...... 13,966 17,802 31,768 2012 ...... 13,314 27,031 40,345 2013 ...... 17,581 41,865 59,446 2014 ...... 55,644 73,421 129,065 2015 ...... 45,403 44,910 90,313 2016 ...... 74,798 71,067 145,865 2017 ...... 64,628 49,292 113,920 2018 ...... 57,353 50,145 107,498

CBP makes a case by case a UAC or part of a family unit upon TABLE 8—FY 2014–FY 2018 JUVE- determination as to whether an alien is encountering an alien, in order to NILE BOOK-INS WITH ICE AS AR- a UAC based upon the information and determine appropriate removal RESTING AGENCY—Continued evidence available at the time of proceedings pursuant to the TVPRA. encounter. When making this ICE Book-ins of UAC determination, CBP follows section Fiscal year accompanied book-ins 462(g)(2) of the HSA, which defines a When ICE encounters a juvenile minors UAC as a child who—(A) has no lawful during an interior enforcement action, 2018 ...... 102 343 immigration status in the United States; ICE performs an interview to determine (B) has not attained 18 years of age; and the juvenile’s nationality, immigration (C) with respect to whom—(i) there is status, and age. Pursuant to the TVPRA, Once ICE determines that an alien is no parent or legal guardian in the an alien who has been encountered and a UAC, ICE must process the UAC United States; or (ii) no parent or legal has no lawful immigration status in the consistent with the provisions of the guardian in the United States is United States, has not attained 18 years TVPRA, which requires the transfer of a available to provide care and physical of age, and has no parent or legal UAC into the custody of ORR within 72 custody. guardian in the United States available hours of determining that the juvenile Once CBP determines that an alien is to provide care and physical custody meets the definition of a UAC, except in a UAC, CBP must process the UAC will be classified as a UAC. The number exceptional circumstances. consistent with the provisions of the of juvenile arrests made by ICE is At the time that the FSA was agreed TVPRA, which requires the transfer of a significantly smaller than CBP across all to in 1997, INS enforcement efforts UAC who is not statutorily eligible to fiscal years as shown in below. A non- mainly encountered single adults, and withdraw his or her application for UAC minor would have to be arrested only adult detention facilities were in admission into the custody of ORR to be booked into an FRC. operation. Prior to 2001, when a within 72 hours of determining that the decision was made to detain an adult juvenile meets the definition of a UAC, TABLE 8—FY 2014–FY 2018 JUVE- family member, the other family except in exceptional circumstances. NILE BOOK-INS WITH ICE AS AR- members were generally separated from If, upon apprehension or encounter, RESTING AGENCY that adult. However, beginning in 2001, CBP determines that an alien is a minor in an effort to maintain family unity, who is part of a family unit, the family Book-ins of UAC INS began opening FRCs to unit is processed accordingly and Fiscal year accompanied accommodate families who were minors book-ins transferred out of CBP custody. If seeking asylum but whose cases had appropriate, the family unit may be 2014 ...... 3 285 been drawn out. INS initially opened transferred to an ICE FRC. If the FSA 2015 ...... 8 200 what today is the Berks FRC (Berks) in were not in place, CBP would still make 2016 ...... 108 164 Berks, Pennsylvania, in 2001. ICE also a determination of whether an alien was 2017 ...... 123 292 operated the T. Don Hutto medium-

73 See U.S. Customs and Border Protection, Southwest Border Migration FY 2019 at https:// www.cbp.gov/newsroom/stats/sw-border-migration.

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security facility in Taylor, Texas as an beds, and the Karnes County Residential standards, not every available bed will FRC from 2006 to 2009. In response to Center in Karnes County, Texas (Karnes) be filled at any given time, and the the influx of UACs and family units in has 830 beds. The capacity of the three facilities may still be considered to be 2014 in the Rio Grande Valley, ICE FRCs provide for a total of 3,326 beds. at capacity even if every available bed opened FRCs in Artesia, New Mexico in Currently, the Karnes FRC houses male is not filled. ICE did not maintain a June of 2014; Karnes County, Texas in heads of household, the Berks FRC consistent system of records of FRC July of 2014; and Dilley, Texas in houses dual parent families, and the intakes until July 2014. Since 2015, December of 2014. The Artesia facility, Dilley FRC houses female heads of there has been an annual average of which was intended as a temporary household (though ICE has transitioned 35,032 intakes of adults and minors at facility while more permanent facilities Karnes to housing single adult females the FRCs. The count of FRC intakes as of the time of this rule to reflect were contracted for and established, was from July 2014 through FY 2019 Year- operational considerations). As a closed on December 31, 2014. to-Date (YTD) is shown in Table 9 The South Texas FRC in Dilley, Texas practical matter, given varying family (Dilley) has 2,400 beds, Berks has 96 sizes and compositions, and housing below.

TABLE 9—FRC INTAKES FY 2014–FY 2019 YTD

FRC adult FRC minor Fiscal year FRC intakes intakes intakes

Q4 2014 * ...... 1,589 711 878 2015 ...... 13,206 5,964 7,242 2016 ...... 43,342 19,452 23,890 2017 ...... 37,825 17,219 20,606 2018 ...... 45,755 21,490 24,265 2019 YTD ** ...... 26,869 12,654 14,215 * 2014 only includes the fourth quarter of FY 2014: July, August, and September. ** Through April 4, 2019.

Due to court decisions in 2015 and the period of time required for USCIS to the average number of days from book- 2017, DHS ordinarily uses its FRCs for conduct credible fear proceedings. Since in date to release date at FRCs for FY the detention of non-UAC minors and 2016, the average number of days from 2014 through FY 2019 YTD (April 4, their accompanying parent(s) or legal the book-in date to the release date at all 2019), based on releases by fiscal year. guardian(s) for periods of up to FRCs for both minors and adults has Data on releases are available for all four approximately 20 days. This is generally been less than 15 days. Table 10 shows quarters of FY 2014.

TABLE 10—AVERAGE NUMBER OF DAYS FROM BOOK-IN DATE TO RELEASE DATE AT FRCS FY 2014–FY 2019 YTD

Average days Average days Fiscal year Average number for minors for adults of days (<18 years old) (≥18 years old)

2014 ...... 47.4 46.7 48.4 2015 ...... 43.5 43.1 44.0 2016 ...... 13.6 13.6 13.6 2017 ...... 14.2 14.2 14.1 2018 ...... 17.1 17.1 17.1 2019 YTD * ...... 12.4 12.3 12.5 * Through April 4, 2019.

Table 11 shows the reasons for the Table 12 shows the number of adults TABLE 12—REMOVALS FROM FRCS release of adults and minors from FRCs and minors removed from the United FY 2014–FY 2019 YTD—Continued in FY 2017 and FY 2018. As it indicates, States from FRCs since FY 2014. the large majority of such individuals Removals include returns. Returns Fiscal year Removals were released on an order of their own include Voluntary Departures recognizance or paroled. (including Voluntary Returns) 74 and 2015 ...... 430 Withdrawals Under Docket Control. 2016 ...... 724 2017 ...... 977 TABLE 11—REASONS FOR RELEASE 2018 ...... 968 TABLE 12—REMOVALS FROM FRCS 2019 YTD ** ...... 496 FY FY FY 2014–FY 2019 YTD Reason for release 2017 2018 * 2014 only includes the fourth quarter of percent percent Fiscal year Removals 2014: July, August, and September. ** Includes October 2018–March 2019. Order of Recognizance 76.9 76.7 Q4 2014 * ...... 390 The FSA does not impose Paroled ...... 21.3 22.1 requirements on secure facilities used Order of Supervision .... 1.7 1.1 74 For the purposes of this table, Voluntary Return for the detention of juveniles. Juveniles Bonded Out ...... 0.1 <0.0 refers to the DHS grant of permission for an alien may be placed in secure facilities if they Prosecutorial Discretion <0.0 <0.0 to depart the United States, while Voluntary Departure refers to the immigration judge’s grant of meet the criteria listed in paragraph 21 permission for an alien to depart the United States. of the FSA.

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The rule also applies to UACs who TABLE 14—PERCENTAGE OF UACSBY access to food; drinking water; have been transferred to HHS care and DISCHARGE TYPE FY 18—Continued functioning toilets and sinks; adequate custody. Upon referral, HHS promptly temperature and ventilation; emergency medical care, if needed; and safe and places UACs in the least restrictive Discharge type Percentage setting that is in the best interests of the of UACs sanitary facilities. Thus, CBP incurs child, taking into consideration danger costs for, among other things, the to self or others and risk of flight. HHS Reunified (Program/Facility) ..... 0.7 purchase of food; bottled water; first aid Voluntary Departure ...... 2.0 considers the unique nature of each kits; hygiene items; blankets, mats, or child’s situation and incorporates child Total ...... 100.0 cots; and age-appropriate transport and welfare principles when making bedding. To ensure compliance with the placement and release decisions that are 2. Baseline of Current Costs FSA, CBP has also added fields in its in the best interest of the child. electronic systems of records, so that HHS places UACs in a network of In order to properly evaluate the CBP officers and Border Patrol agents benefits and costs of regulations, more than 100 shelters in 17 states. For can continuously record the conditions agencies must evaluate the costs and the first nine years of the UAC Program of the hold rooms and all custodial benefits against a baseline. OMB at HHS, less than 8,000 UACs were activities related to each minor or UAC, Circular A–4 defines the ‘‘no action’’ served annually. Since FY 2012, this such as medical care provided, welfare baseline as ‘‘the best assessment of the number has increased dramatically, checks conducted, and any separation way the world would look absent the with a total of 13,625 children referred from accompanying family members. proposed action.’’ It also specifies that to HHS by the end of FY 2012. Between CBP experiences other baseline costs FY 2012 and FY 2018, HHS received a the baseline ‘‘should incorporate the agency’s best forecast of how the world from its national and field office total of 316,454 UACs. will change in the future,’’ absent the Juvenile Coordinators. Under current regulation. The Departments consider practice, as described above, the TABLE 13—UAC REFERRALS TO HHS their current operations and procedures national CBP Juvenile Coordinator FY 2008–FY 2018 for implementing the terms of the FSA, oversees agency compliance with the FSA requirements and with policy Fiscal year Referrals the HSA, and the TVPRA to be the primary baseline for this analysis, from related to the treatment of minors and UACs in CBP custody. The national CBP 2008 ...... 6,658 which they estimate the costs and 2009 ...... 6,089 benefits of the rule. The Departments Juvenile Coordinator monitors CBP 2010 ...... 7,383 also consider how current operations facilities and processes through site 2011 ...... 6,560 and procedures could change, in the visits and review of juvenile custodial 2012 ...... 13,625 absence of this rule, depending on a records. Along with the national CBP 2013 ...... 24,668 number of factors. Juvenile Coordinator role, CBP has field 2014 ...... 57,496 The baseline encompasses the FSA office and sector Juvenile Coordinators 2015 ...... 33,726 that was approved by the court on who are responsible for managing all 2016 ...... 59,170 policies on the processing of juveniles 2017 ...... 40,810 January 28, 1997. It also encompasses 2018 ...... 49,100 the 2002 HSA legislation transferring within CBP facilities, coordinating the responsibility for the care and within CBP and across DHS components For FY 2018 the average length of care custody of UACs, including some of the to ensure the expeditious placement and (the time a child has been in custody, material terms of the FSA, to ORR, as transport of juveniles placed into since the time of admission) for UACs well as the substantive terms of the 2008 removal proceedings by CBP, and was approximately 60 days. The TVPRA. Finally, it includes the July 6, informing CBP operational offices of any majority (more than 85 percent) of UACs 2016 decision of the Ninth Circuit policy updates related to the processing are released to suitable sponsors who affirming the district court’s finding that of juveniles (e.g., through are family members within the United the FSA applies to both accompanied correspondence, training presentations). States. UACs who are not released to a and unaccompanied minors, and that Moreover, CBP’s Juvenile Coordinators sponsor typically age out or receive an such minors shall not be detained in serve as internal and external agency order of removal and are transferred to unlicensed and secure facilities that do liaisons for all juvenile processing DHS; are granted voluntary departure not meet the requirements of the FSA. matters. and likewise transferred to DHS for See Flores v. Lynch, 828 F.3d 898 (9th CBP’s baseline costs also include the removal; or, obtain immigration legal Cir. 2016). The section below discusses use of translation services, including relief and are no longer eligible for some examples of the current cost for contracts for telephonic interpretation placement in ORR’s UAC program. the Departments’ operations and services. procedures under the baseline. Because ICE also incurs facility costs to TABLE 14—PERCENTAGE OF UACSBY the costs described below are already comply with the FSA. The costs of DISCHARGE TYPE FY 18 being incurred, they are not costs of this operation and maintenance of the ICE rule. FRCs for FY 2015–2019 are listed in Percentage Table 15, provided by the ICE Office of Discharge type of UACs DHS Acquisition Management. The costs CBP incurs costs to comply with the account for the implementation of the Age Out ...... 4.0 FSA, including those related to facility FSA requirements, including the cost Age Redetermination ...... 2.2 configurations, custodial requirements, for the facility operators to abide by all Immigration Relief Granted ...... 0.2 and compliance monitoring. To comply Local Law Enforcement ...... 0.0 relevant state standards. Two of the Ordered Removed ...... 0.2 with the terms of the FSA, for example, FRCs are operated by private Other ...... 4.5 CBP reallocates space in its facilities to contractors, while one is operated by a Runaway from Facility ...... 0.4 allow for separate holding areas for local government, under contract with Runaway on Field Trip ...... 0.1 families and/or UACs. Pursuant to the ICE. These are the amounts that have Reunified (Individual Sponsor) 85.8 FSA, CBP provides minors and UACs been paid to private contractors or to the

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local government to include beds, families. The role of ICE’s Juvenile inadmissible at ports of entry along the guards, health care, and education. Coordinator is within JFRMU. In Southwest border. This spike in addition to the national ICE Juvenile numbers has placed significant strains TABLE 15—CURRENT COSTS FOR Coordinator role, ICE has field office on ICE and CBP. In light of this ongoing, FRCS and sector Juvenile Coordinators whose urgent humanitarian crisis, and apart responsibilities mirror those of CBP’s. In from this rule, ICE could potentially Fiscal year FRC costs addition, compliance with the Flores build out the existing space at the Dilley court’s mandate is monitored by weekly facility. An additional 960 beds at Dilley 2015 ...... $323,264,774 reports identifying any minors in would cost approximately $80 million. 2016 ...... 312,202,420 custody over 20 days at FRCs and The decision for a buildout would be 2017 * ...... 232,244,792 2018 ...... 224,321,766 reviewing the reasons provided by the based on emerging operational, policy, field office. Additionally, weekly audits and agency needs and available funding. * Revised from NPRM at 83 FR 45513 with of 5 percent of the FRC population is ICE could also require additional final costs. done by reviewing files and ensuring transportation funding to transport these The FRC costs are fixed-price that minors are served with the required family units out of CBP custody. CBP agreements with variable costs added on forms—Notice of Rights, Designated may also expend additional funding to a monthly basis. Overall, the fixed-price Sponsor Form, and the Parole Review build and maintain any appropriate agreements are not dependent on the Worksheet. JFRMU consists of temporary facilities. Because these number of detainees present or length of specialized Federal staff, as well as change could happen in the absence of stay, with some exceptions. At Berks, contract subject matter experts in the this rule, they would not be an impact the contract includes a per-person, per- fields of child psychology, child of this rule but would be part of baseline day fee charged in addition to the development, education, medicine, and costs. monthly fixed rate. At two of the FRCs, conditions of confinement. JFRMU HHS’ baseline costs were $1.4 billion Berks and Karnes, education is provided establishes policies on the management in FY 2017. HHS funds private non- per the standards of a licensed program of family custody, UACs pending profit and for-profit agencies to provide set forth in the FSA, at a per-student, transfer to the ORR, and UACs applying shelter, counseling, medical care, legal per-day cost. Since FRCs are currently at for Special Immigrant Juvenile status. services, and other support services to limited available capacity and the JFRMU continues to pursue uniform UACs in custody. Funding levels for configuration of limited available operations throughout its program non-profit organizations totaled capacity varies from day to day across through implementation of family $912,963,474 in FY 2017. Funding all FRCs, the number of children and residential standards. These standards levels for for-profit agencies totaled adults vary at Berks day to day and the are continually reviewed and revised as $141,509,819 in FY 2017. Program number of children at Karnes vary day needed to ensure the safety and welfare funded facilities receive grants or to day. Thus, these costs charged to ICE of families awaiting an immigration contracts to provide shelter, including vary from month to month. decision while housed in a family therapeutic care, foster care, shelter In addition to the above example of residential facility. DHS conducts an with increased staff supervision, and baseline costs to operate the FRCs DHS inspection of each FRC at least annually secure detention care. The majority of (particularly CBP and ICE) incurs costs to confirm that the facility is in program costs (approximately 80 to process, transfer, and provide compliance with ICE Family Residential percent) are for bed capacity care. Other transportation of minors and UACs from Standards. services for UACs, such as medical care, the point of apprehension to DHS The baseline costs include the background checks, and family facilities; from the point of monitoring of FSA compliance and reunification services, make up apprehension or from a DHS facility to reporting to the court. Since 2007, approximately 15 percent of the budget. HHS facilities; between facilities; for the JFRMU has submitted Flores Reports In addition, some funding is provided purposes of release; and for all other annually, bi-annually, or monthly for for limited post-release services to circumstances, in compliance with the submission to the court through DOJ. certain UACs. Administrative expenses FSA, HSA, and TVPRA. In addition, DHS considered how to carry out the program total The baseline costs also include bond DHS’s current procedures and approximately five percent of the hearings for minors and family units operations might change in the future in budget. who are eligible for such hearings. the absence of this rule. For example, Influx costs to the program vary year When a minor or family unit seeks a DHS has seen a large spike in the to year, and are dependent on migration bond, ICE officers must review the number of family units apprehended or patterns and the resulting numbers of request and evaluate the individuals’ found inadmissible at the Southwest UACs cared for by HHS. In FY 2016, for eligibility as well as, where appropriate, Border.75 As of June 2019, with three instance, HHS total approved funding set the initial bond amount. Further, months remaining in FY 2019, CBP has for the UAC program was $743,538,991, should the minor or family unit seek a apprehended over 390,000 family units with $224,665,994 going to influx bond redetermination hearing before an between the ports of entry on the programming. In FY 2017, the total immigration judge, ICE must transport Southwest Border, so far this fiscal year, funding was $912,963,474, with or otherwise arrange for the individuals as compared to 107,212 family units in $141,509,819 for influx. to appear before the immigration court. all of FY 2018. As of this same date, These are examples of the types of ICE’s baseline costs also include the use 33,950 family units have been found costs the Departments incur under of translation services, including current operations, and are not a result contracts for telephonic interpretation 75 See United States Border Patrol Total Family of this rule. services. Unit Apprehensions By Month—FY 2013 through ICE also incurs baseline costs related FY 2018 at https://www.cbp.gov/sites/default/files/ 3. Costs to its Juvenile and Family Residential assets/documents/2019-Mar/bp-total-monthly- This rulemaking would implement Management Unit (JFRMU), which was family-units-sector-fy13-fy18.pdf (last visited May 10, 2019). See also Southwest Border Migration FY the relevant and substantive terms of the created in 2007. JFRMU manages ICE’s 2019 at https://www.cbp.gov/newsroom/stats/sw- FSA, with limited changes necessary to policies affecting alien juveniles and border-migration (last visited June 5, 2019). implement closely related provisions of

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the HSA and TVPRA, and to ensure that shifting hearings from DOJ to HHS. The a number of factors, and at this time ICE the regulations set forth a sustainable alternative license for FRCs and changes is unable to determine if this rule would operational model of immigration to parole determination practices may result in additional bed space. This rule enforcement in light of changes in law, result in additional or longer detention does not require the addition of new bed circumstance, as well as agency for certain individuals, but DHS is space, but by allowing alternative experience. While this rule itself does unable to estimate the costs of this to licensing for FRCs it does remove a not require in any particular outcome, it the Government or to the individuals barrier to DHS’s use of its does allow for several policy outcomes, being detained because DHS is not sure Congressionally-authorized detention to include longer detention periods for how many individuals will be detained authority, allowing families to stay some individuals, in particular families at FRCs after this rule is effective or for together through the duration of their during expedited removal proceedings how much longer individuals may be immigration proceedings. If bed space or families in section 240 proceedings detained because there are so many were increased, the cost would depend who pose a flight risk or danger, which other variables that may affect such on the type of facility, facility size, may lead to the construction of estimates. It is possible that some location, available funding, and a additional bed space or facilities, given families will experience longer number of other variables. However, ICE other external factors. This section notes as an example that an additional assesses the cost of these possible policy detention periods, but—given finite resources and bed space at FRCs—this 960 beds at Dilley would cost outcomes as compared to the current approximately $80 million. operational environment (the also means that many other families will Departments’ primary assessment of experience less detention than under Table 16 shows the changes to the what the world would be like absent the current status in which DHS DHS current operational status this rule). generally detains for only 20 days. DHS compared to the FSA. It contains a The primary changes to the current is also unable to provide an estimate of preliminary, high-level overview of how operational environment resulting from the cost of any increased detention on the rule would change DHS’s current this rule are implementing an the individuals being detained. ICE operations, for purposes of the alternative licensing process, making notes that while longer detention for economic analysis. The table does not changes to ICE parole determination certain family units could result in the provide a comprehensive description of practices to align them with applicable need for additional space, the decision all provisions and their basis and statutory and regulatory authority, and to increase bed space would be based on purpose. TABLE 16—FSA AND DHS CURRENT OPERATIONAL STATUS

DHS cite FSA paragraph No. Description of FSA provision (8 CFR) DHS change from current practice

1, 2, 3 ...... ‘‘Party, ‘‘plaintiff’’ and ‘‘class member’’ definitions ...... N/A ...... None. (Note: These definitions are only relevant to the FSA insofar as the FSA exists in the form of a con- sent decree. Following promulgation of a final rule, the definitions would no longer be relevant. As a result, the rule does not include these definitions.) 4 ...... ‘‘Minor’’ definition ...... 236.3(b)(1) ...... None. 5 ...... ‘‘Emancipated minor’’ definition ...... 236.3(b)(1)(i) ...... None. 6 ...... ‘‘Licensed program’’ definition ...... 236.3(b)(9) ...... FSA defines a ‘‘licensed program’’ as one licensed by an appropriate State agency. DHS would not define ‘‘licensed program,’’ but instead would define a ‘‘li- censed facility’’ as an ICE detention facility that is li- censed by the state, county, or municipality in which it is located. DHS would also add an alternative licens- ing process for FRCs, if the state, county, or munici- pality where the facility is located does not have a li- censing process for such facilities. (Note: In response to comments, DHS will post the results of third-party audits of its licensed facility standards on a public-fac- ing website. The definition now specifies that audits will occur upon the opening of an FRC and on a reg- ular ongoing basis thereafter). 6+ Exhibit 1 ...... Exhibit 1, standards of a licensed program ...... 236.3(i)(4) ...... DHS provides requirements that licensed facilities must meet. (Note: Compared with Exhibit 1, these require- ments contain a slightly broadened educational serv- ices description to capture current operations and add that program design should be appropriate for length of stay (see paragraph (i)(4)(iv)); amend ‘‘family reuni- fication services’’ provision to more appropriately offer communication with adult relatives in the U.S. and internationally, since DHS only has custody of accom- panied minors so reunification is unnecessary (see § 236.3(i)(4)(iii)(H)).) 7 ...... ‘‘Special needs minor’’ definition and standard ...... 236.3(b)(2) ...... None. (Note: In response to public comments, DHS re- placing the term ‘‘retardation’’ with the term ‘‘intellec- tual disability.’’) 8 ...... ‘‘Medium security facility’’ definition ...... N/A ...... None. (Note: DHS only has secure or non-secure facili- ties, so a definition of ‘‘medium security facility’’ is un- necessary. As a result, the rule lacks such a defini- tion, even though the FSA contains one.)

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TABLE 16—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued

DHS cite FSA paragraph No. Description of FSA provision (8 CFR) DHS change from current practice

9 ...... Scope of Settlement Agreement, Effective Date, and N/A ...... None. (Note: This provision imposes a series of dead- Publication. lines that passed years ago, and/or do not impose ob- ligations on the parties that continue following termi- nation of the FSA. As a result, the rule does not in- clude this provision.) 10 ...... Class Definition ...... N/A ...... None. (Note: Provision is specific to the litigation and is not a relevant or substantive term of the FSA, so it is not included in the rule.) 11 ...... Place each detained minor in least restrictive setting ap- 236.3(g)(2)(i), (i), (j)(4) None. (Note: § 236.3(j) tracks FSA paragraph 14, which propriate for age and special needs. No requirement is consistent with FSA paragraph 11 but uses different to release to any person who may harm or neglect the terms.) minor or fail to present minor before the immigration court. 11 ...... The INS treats, and shall continue to treat, all minors in 236.3(a)(1) ...... None. its custody with dignity, respect and special concern for their particular vulnerability as minors. 12(A) ...... Expeditiously process the minor ...... 236.3(e), (f), & None. (Note: The rule reflects the fact that the TVPRA (g)(2)(i). (rather than the FSA) governs the processing and transfer of UACs. The rule also makes clear that gen- erally, unless an emergency or influx ceases to exist, the transfer timelines associated with an emergency or influx continue to apply for non-UAC minors.) 12(A) ...... Shall provide the minor with notice of rights ...... 236.3(g)(1)(i) ...... None (with the exception that the Form I–770 will be provided, read, or explained to all minors and UACs in a language and manner that they understand). 12(A) ...... Facilities must be safe and sanitary including toilets and 236.3(g)(2)(i) ...... None. sinks, water and food, medical assistance for emer- gencies, temperature control and ventilation, adequate supervision to protect minor from others. 12(A) ...... Contact with family members who were arrested with the 236.3(g)(2)(i) ...... None. (Note: The rule contains a slightly different stand- minor. ard than appears in the FSA. The rule provides for contact with family members apprehended with both minors and UACs. Additionally, the rule invokes oper- ational feasibility and consideration of the safety or well-being of the minor or UAC in facilitating contact. The FSA generally prioritizes the safety and well- being of the minor and that of others, but does not in- clude these provisos.) 12(A) ...... Segregate unaccompanied minors from unrelated adults, 236.3(g)(2)(i) ...... None. (Note: The rule would allow UACs to be held with unless not immediately possible (in which case an un- unrelated adults for no more than 24 hours except in accompanied minor may not be held with an unrelated cases of emergency.) adult for more than 24 hours). 12(A), 12(A)(1)–(3), Transfer in a timely manner: Three days to five days 236.3(b)(5), (b)(10), None. (Note: Following the TVPRA, the transfer provi- 12(B). max with exceptions, such as emergency or influx, (e)(1). sions in FSA paragraph 12(A) apply to DHS only for which requires placement as expeditiously as possible. accompanied minors. In addition, the ’rule’s definition of ‘‘emergency’’ clarifies that an emergency may cre- ate adequate cause to depart from any provision of § 236.3, not just the transfer timeline.) 12(A)(4) ...... Transfer within 5 days instead of 3 days in cases involv- N/A ...... None. (Note: Although DHS is not proposing a change ing transport from remote areas or where an alien in practice, it does not propose to codify this exception speaks an ‘‘unusual’’ language. from the FSA in § 236.3(e) because operational im- provements have rendered the exception unneces- sary.) 12(C) ...... Written plan for ‘‘emergency’’ or ‘‘influx’’ ...... 236.3(e)(2) ...... None. (Note: Like the FSA, the rule requires a written plan. The written plan is contained in a range of guid- ance documents.) 13 ...... Age determination ...... 236.3(c) ...... None. (Note: The rule includes a ‘‘totality of the cir- cumstances’’ standard; the FSA does not contain a standard that conflicts with ‘‘totality of the cir- cumstances.’’) 14 ...... Release from custody where the INS determines that 236.3(j) (release gen- The rule details the statutory and regulatory provisions the detention of the minor is not required either to se- erally). that govern the custody and release of non-UAC mi- cure his or her timely appearance before the INS or nors. The rule also clarifies that for minors detained the immigration court, or to ensure the minor’s safety pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c), pa- or that of others. Release is to, in order of preference: role will generally serve an urgent humanitarian rea- Parent, legal guardian, adult relative, adult or entity, li- son if DHS determines that detention is not required censed program, adult seeking custody. to secure the minor’s timely appearance before DHS or the immigration court, or to ensure the minor’s safety and well-being or the safety of others. In addi- tion, the rule codifies the list of individuals to whom a non-UAC minor can be released. Per the TVPRA, DHS does not have the authority to release UACs. 15 ...... Before release from custody, Form I–134 and agree- N/A ...... None. (Note: The rule does not codify this portion of the ment to certain terms must be executed. If emer- FSA, because (1) the TVPRA has overtaken this pro- gency, then minor can be transferred temporarily to vision in part, and (2) these requirements, which are custodian but must notify INS in 72 hours. primarily for DHS’s benefit, are not currently imple- mented.)

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TABLE 16—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued

DHS cite FSA paragraph No. Description of FSA provision (8 CFR) DHS change from current practice

16 ...... INS may terminate the custody if terms are not met ...... N/A ...... None. (Note: The rule does not codify this portion of the FSA, because (1) the TVPRA has overtaken this pro- vision in part, and (2) these requirements, which are primarily for DHS’s benefit, are not currently imple- mented.) 17 ...... Positive suitability assessment ...... N/A ...... None. (Note: The rule does not codify this portion of the FSA, because the TVPRA has overtaken this provi- sion. Per the TVPRA, DHS does not have the author- ity to release UACs.) 18 ...... INS or licensed program must make and record the 236.3(j) ...... None. prompt and continuous efforts on its part toward family reunification efforts and release of minor consistent with FSA paragraph 14. 19 ...... INS custody in licensed facilities until release or until im- 236.3(i), (i)(5) ...... None. migration proceedings are concluded. Temporary transfers in event of an emergency. 20 ...... INS must publish a ‘‘Program Announcement’’ within 60 N/A ...... None. (Note: This provision imposes a deadline that Days of the FSA’s approval. passed years ago. As a result, the rule does not in- clude this provision.) 21 ...... Transfer to a suitable State or county juvenile detention 236.3(i)(1) ...... None. (Note: The rule clarifies some of the exceptions to facility if a minor has been charged or convicted of a secure detention, consistent with current practice and crime with exceptions. in line with the intent underlying FSA paragraph 21(A)(i)–(ii). The rule also removes the specific exam- ples used in FSA.) 22 ...... Escape risk definition ...... 236.3(b)(6) ...... None. (Note: The rule uses final order of ‘‘removal’’ rath- er than deportation or exclusion, and considers past absconding from state or Federal custody; and not just DHS or HHS custody.) 23 ...... Least restrictive placement of minors available and ap- 236.3(i)(2) ...... None. propriate. 24(A) ...... Bond redetermination hearing afforded ...... 236.3(m) ...... None. (Note: The rule adds language to specifically ex- clude those aliens for which IJs do not have jurisdic- tion, as provided in 8 CFR 1003.19.) 24(B) ...... Judicial review of placement in a particular type of facil- N/A ...... None. (Note: The rule does not expressly provide for ju- ity permitted or that facility does not comply with dicial review of placement/compliance, as a regulation standards in Ex. 1. cannot confer jurisdiction on Federal court.) 24(C) ...... Notice of reasons provided to minor not in a licensed N/A ...... None. program/judicial review. 24(D) ...... All minors ‘‘not released’’ shall be given Form I–770, no- 236.3(g)(1) ...... None. (Note: The rule requires DHS to provide the no- tice of right to judicial review, and list of free legal tice of right to judicial review and list of counsel to services. those minors who are not UACs and who are trans- ferred to or remain in a DHS detention facility. The corresponding FSA provisions apply to minors ‘‘not re- leased.’’ The difference in scope is a result of the TVPRA and reflects the relationship between para- graph 12(A), which applies to the provision of certain rights (largely contained on the I–770) immediately fol- lowing arrest, and Paragraph 28(D), which applies to all minors who are ‘‘not released,’’ and so are de- tained by DHS. The language does not reflect a change in practice. The rule also includes more de- tailed language with respect to the Form I–770 than the FSA; this language comes from current 8 CFR 236.3, and is consistent with the requirements of Paragraph 12(A).) 24(E) ...... Additional information on precursors to seeking judicial N/A ...... None. (Note: Responsibilities of the minor prior to bring- review. ing litigation are not relevant or substantive terms of the FSA, and are not included in the rule.) 25 ...... Unaccompanied minors in INS custody should not be 236.3(f)(4) ...... None. (Note: The rule makes a clarifying change: The transported in vehicles with detained adults except rule adds ‘‘or unavailable’’ as an exception to ‘‘im- when transport is from place of arrest/apprehension to practical.’’) an INS office, or when separate transportation would otherwise be impractical. 26 ...... Provide assistance in making transportation arrange- 236.3(j)(3) ...... None. (Note: The rule would remove the reference to re- ment for release of minor to person or facility to whom lease to a ‘‘facility.’’ Referral to HHS is a transfer, not released. a release.) 27 ...... Transfer between placements with possessions, notice 236.3(k) ...... None. to counsel. 28(A) ...... INS Juvenile Coordinator to monitor compliance with 236.3(o) ...... None. (Note: The rule requires collection of relevant FSA and maintain records on all minors placed in pro- data for purposes of monitoring compliance. The list of ceedings and remain in custody for longer than 72 data points is similar to the list in 28(A) but not iden- hours. tical.) 28(B) ...... Plaintiffs’ counsel may contact INS Juvenile Coordinator N/A ...... This provision would no longer apply following termi- to request an investigation on why a minor has not nation of the FSA. (Note: Special provisions for Plain- been released. tiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule.) 29 ...... Plaintiffs’ counsel must be provided information pursuant N/A ...... This provision would no longer apply following termi- to FSA paragraph 28 on a semi-annual basis; Plain- nation of the FSA. (Note: Special provisions for Plain- tiffs’ counsel have the opportunity to submit questions. tiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule.)

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TABLE 16—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued

DHS cite FSA paragraph No. Description of FSA provision (8 CFR) DHS change from current practice

30 ...... INS Juvenile Coordinator must report to the court annu- N/A ...... This provision would no longer apply following termi- ally. nation of the FSA. (Note: Special provisions for report- ing to the court are not relevant or substantive terms of the FSA, and are not included in the rule.) 31 ...... Defendants can request a substantial compliance deter- N/A ...... None. (Note: This provision imposed a timeframe related mination after one year of the FSA. to court supervision of the FSA. As a result, the rule does not include this provision.) 32(A), (B), and (D) ..... Attorney-client visits with class members allowed for N/A ...... Special provisions for Plaintiffs’ counsel are not relevant Plaintiffs’ counsel at a facility. or substantive terms of the FSA, and are not included in the rule. 32(C) ...... Agreements for the placement of minors in non-INS fa- 236.3(i)(4)(xv) ...... None. (Note: Special provisions for Plaintiffs’ counsel cilities shall permit attorney-client visits, including by are not relevant or substantive terms of the FSA, so class counsel. the reference to class counsel is not included in the rule.) 33 ...... Plaintiffs’ counsel allowed to request access to, and visit N/A ...... Special provisions for Plaintiffs’ counsel are not relevant licensed program facility or medium security facility or or substantive terms of the FSA, and are not included detention facility. in the rule. 34 ...... INS employees must be trained on FSA within 120 days N/A ...... None. (Note: This provision imposed a deadline that of court approval. passed years ago. As a result, the rule does not in- clude this provision.) 35 ...... Dismissal of action after court has determined substan- N/A ...... None. (Note: Provisions specific to terminating the action tial compliance. are not relevant or substantive terms of the FSA, and are not included in the rule.) 36 ...... Reservation of Rights ...... N/A ...... None. (Note: This provision is only relevant to the FSA insofar as the FSA exists in the form of a consent de- cree. Following promulgation of a final rule, it would no longer be relevant. As a result, the rule does not include this provision.) 37 ...... Notice and Dispute Resolution ...... N/A ...... None. (Note: This provision provides for ongoing en- forcement of the FSA by the district court. As a result, the rule does not include this provision.) 38 ...... Publicity—joint press conference ...... N/A ...... None. (Note: This provision relates to an event that oc- curred years ago. As a result, the rule does not in- clude this provision.) 39 ...... Attorneys’ Fees and Costs ...... N/A ...... None. (Note: This provision imposed a deadline that passed years ago. As a result, the rule does not in- clude this provision.) 40 ...... Termination 45 days after publication of final rule ...... N/A ...... None. (Note: Provisions specific to terminating the FSA are not relevant or substantive terms, and are not in- cluded in the rule.) 41 ...... Representations and Warranty ...... N/A ...... None. (Note: This provision is only relevant to the FSA insofar as the FSA exists in the form of a consent de- cree. Following promulgation of a final rule, it would no longer be relevant. As a result, the rule does not include this provision.)

TABLE 17—FSA AND HHS CURRENT OPERATIONAL STATUS

HHS cite FSA paragraph No. Description of FSA provision (45 CFR) HHS change from current practice

1, 2, 3 ...... ‘‘Party, ‘‘plaintiff’’ and ‘‘class member’’ definitions ...... N/A ...... None. (Note: These definitions are only relevant to the FSA insofar as the FSA exists in the form of a con- sent decree. Following promulgation of a final rule, the definitions would no longer be relevant. As a result, the rule does not include these definitions). 4 ...... ‘‘minor’’ ...... N/A ...... HHS uses the statutory term ‘‘unaccompanied alien child’’ (UAC) as HHS only provides care and custody to UAC as defined under 6 U.S.C. 279(g)(2) pursuant to 8 U.S.C. 1232(b)(1). 5 ...... ‘‘emancipated minor’’ ...... N/A ...... Term only has significant for DHS portion of the joint rule. 6 ...... ‘‘licensed program’’ ...... 410.101 ...... Adopted in relevant part, but replaces ‘‘minor’’ with ‘‘UAC’’ as HHS only provides care and custody to UAC. 7 ...... ‘‘special needs minor’’ ...... 410.101; 410.208 ...... None. (Note: In response to public comments, HHS re- placing the term ‘‘retardation’’ with the term ‘‘intellec- tual disability.’’). 8 ...... ‘‘medium secure facility’’ ...... N/A ...... None. (Note: ORR does not use medium secure facili- ties). 9 ...... Scope of Settlement Agreement, Effective Date, and N/A ...... None. (Note: This provision imposes a series of dead- Publication. lines that passed years ago, and/or do not impose ob- ligations on the parties that continue following termi- nation of the FSA. As a result, the rule does not in- clude this provision). 10 ...... Class Definition ...... N/A ...... None. (Note: Provision is specific to the litigation and is not a relevant or substantive term of the FSA, so it is not included in the rule).

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TABLE 17—FSA AND HHS CURRENT OPERATIONAL STATUS—Continued

HHS cite FSA paragraph No. Description of FSA provision (45 CFR) HHS change from current practice

11 ...... Statements of General Applicability ...... 410.102 ...... None. (Note: The HHS portion of the rule only applies to UAC in HHS care and custody). 12(A) ...... Procedures and Temporary Placement Following Arrest 410.201(a)–(d); None. (Note: ORR is not involved in the apprehension of 410.209. UAC or their immediate detention following arrest. HHS adopts standards of 12A for its care provider fa- cilities). 12(B); 12(C) ...... Defining ‘‘emergency’’ and ‘‘influx’’ ...... 410.101 ...... None. 13 ...... Placing aliens who appear to be adults; age determina- 410.202(a)(4); None (Note: Section 410.202(a)(4) conforms with the tions. 410.700–410.701. FSA requirement that allows the government to not place an alien who appears to the reasonable person to be an adult in HHS custody. Sections 410.700– 410.701 set forth the requirements for age determina- tions in compliance with 8 U.S.C. 1232(b)(4)). 14 ...... Release from custody where the INS determines that 410.300–410.301 ...... None. the detention of the minor is not required either to se- cure his or her timely appearance before the INS or the immigration court, or to ensure the minor’s safety or that of others. Release is to, in order of preference: Parent, legal guardian, adult relative, adult or entity, li- censed program, adult seeking custody. 15 ...... Before release from custody, Form I–134 and agree- 410.302(e) ...... None. ment to certain terms must be executed. If emer- gency, then minor can be transferred temporarily to custodian but must notify INS in 72 hours. 16 ...... INS may terminate the custody if terms are not met ...... N/A ...... N/A. 17 ...... Positive suitability assessment ...... 410.302(c)–(d) ...... None. 18 ...... INS or licensed program must make and record the 410.201(f); 410.302(a) None. prompt and continuous efforts on its part toward family reunification efforts and release of minor consistent with FSA paragraph 14. 19 ...... INS custody in licensed facilities until release or until im- 410.207 ...... None. migration proceedings are concluded. Temporary transfers in event of an emergency. 20 ...... INS must publish a ‘‘Program Announcement’’ within 60 N/A ...... None. (Note: This provision imposes a deadline that Days of the FSA’s approval. passed years ago. As a result, the rule does not in- clude this provision). 21 ...... Transfer to a suitable State or county juvenile detention 410.203 ...... None. (Note: Pursuant to 8 U.S.C. 1232(c)(2)(A), HHS facility if a minor has been charged or convicted of a can only place a UAC in a secure facility (which are crime with exceptions. state or county juvenile detention facilities) if they are a danger to self or others or has been charged with committing a criminal offense. Therefore HHS has re- moved the factors listed in FSA paragraph 21C–D as considerations for a secure placement (escape-risk and to protect UAC from smugglers, respectively). Ad- ditionally, HHS adds the requirements of the TVPRA to place a UAC in the least restrictive setting appro- priate). 22 ...... Escape risk definition ...... 410.101; 410.204 ...... None. (Note: HHS does not use escape risk as a factor for placing a minor in an unlicensed ‘‘secure’’ facility as explained above). 23 ...... Least restrictive placement of minors available and ap- 410.201(a); None. (Note: HHS adds that placement in the least re- propriate. 410.203(d); 410.205. strictive setting include the best interest standard which was not included into the FSA. Additionally, as noted previously ORR does not maintain ‘‘medium se- cure’’ facilities. 24(A) ...... Bond redetermination hearing afforded ...... 410.800–410.801; HHS is transferring bond hearings to an independent 410.810. hearing officer housed within HHS who uses the same standards as immigration judges in bond hearings to determine whether a UAC is a danger to others or risk of flight. 24(B) ...... Judicial review of placement in a particular type of facil- N/A ...... None. (Note: The rule does not expressly provide for ju- ity permitted or that facility does not comply with dicial review of placement/compliance, as a regulation standards in Ex. 1. cannot confer jurisdiction on Federal court). 24(C) ...... Notice of reasons provided to minor not in a licensed 410.206; 410.207 ...... None. (Note: ORR provides UAC in secure or staff-se- program/judicial review. cure the reasons for their placement and notice of ju- dicial review). 24(D) ...... All minors ‘‘not released’’ shall be given Form I–770, no- 410.801(b) ...... Provides administrative review notice for UAC. tice of right to judicial review, and list of free legal services. 24(E) ...... Additional information on precursors to seeking judicial N/A ...... None. (Note: Responsibilities of the minor prior to bring- review. ing litigation are not relevant or substantive terms of the FSA, and are not included in the rule). 25 ...... Unaccompanied minors in INS custody should not be 410.500(a) ...... None. (Note: HHS does not have adults in custody). transported in vehicles with detained adults except when transport is from place of arrest/apprehension to an INS office, or when separate transportation would otherwise be impractical. 26 ...... Provide assistance in making transportation arrange- 410.500(b) ...... None. (Note: The provision references UAC sponsors). ment for release of minor to person or facility to whom released.

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TABLE 17—FSA AND HHS CURRENT OPERATIONAL STATUS—Continued

HHS cite FSA paragraph No. Description of FSA provision (45 CFR) HHS change from current practice

27 ...... Transfer between placements with possessions, notice 410.600 ...... None. to counsel. 28(A) ...... INS Juvenile Coordinator to monitor compliance with 410.403 ...... None. (Note: This provision is mainly specific to DHS. FSA and maintain records on all minors placed in pro- HHS monitors compliance to the rules provisions ceedings and remain in custody for longer than 72 through its policies and procedures that implement the hours. FSA). 28(B) ...... Plaintiffs’ counsel may contact INS Juvenile Coordinator N/A ...... This provision would no longer apply following termi- to request an investigation on why a minor has not nation of the FSA. (Note: Special provisions for Plain- been released. tiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule). 29 ...... Plaintiffs’ counsel must be provided information pursuant N/A ...... This provision would no longer apply following termi- to FSA paragraph 28 on a semi-annual basis; Plain- nation of the FSA. (Note: Special provisions for Plain- tiffs’ counsel have the opportunity to submit questions. tiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule). 30 ...... INS Juvenile Coordinator must report to the court annu- N/A ...... This provision would no longer apply following termi- ally. nation of the FSA. (Note: Special provisions for report- ing to the court are not relevant or substantive terms of the FSA, and are not included in the rule). 31 ...... Defendants can request a substantial compliance deter- N/A ...... None. (Note: This provision imposed a timeframe related mination after one year of the FSA. to court supervision of the FSA. As a result, the rule does not include this provision). 32(A), (B), (C), and Attorney-client visits with class members allowed for N/A ...... Special provisions for Plaintiffs’ counsel are not relevant (D). Plaintiffs’ counsel at a facility. or substantive terms of the FSA, and are not included in the rule. 33 ...... Plaintiffs’ counsel allowed to request access to, and visit N/A ...... Special provisions for Plaintiffs’ counsel are not relevant licensed program facility or medium security facility or or substantive terms of the FSA, and are not included detention facility. in the rule. 34 ...... INS employees must be trained on FSA within 120 days N/A ...... None. (Note: This provision imposed a deadline that of court approval. passed years ago. As a result, the rule does not in- clude this provision). 35 ...... Dismissal of action after court has determined substan- N/A ...... None. (Note: Provisions specific to terminating the action tial compliance. are not relevant or substantive terms of the FSA, and are not included in the rule). 36 ...... Reservation of Rights ...... N/A ...... None. (Note: This provision is only relevant to the FSA insofar as the FSA exists in the form of a consent de- cree. Following promulgation of a final rule, it would no longer be relevant. As a result, the rule does not include this provision). 37 ...... Notice and Dispute Resolution ...... N/A ...... None. (Note: This provision provides for ongoing en- forcement of the FSA by the district court. As a result, the rule does not include this provision). 38 ...... Publicity—joint press conference ...... N/A ...... None. (Note: This provision relates to an event that oc- curred years ago. As a result, the rule does not in- clude this provision). 39 ...... Attorneys’ Fees and Costs ...... N/A ...... None. (Note: This provision imposed a deadline that passed years ago. As a result, the rule does not in- clude this provision). 40 ...... Termination 45 days after publication of final rule ...... N/A ...... None. (Note: Provisions specific to terminating the FSA are not relevant or substantive terms, and are not in- cluded in the rule). 41 ...... Representations and Warranty ...... N/A ...... None. (Note: This provision is only relevant to the FSA insofar as the FSA exists in the form of a consent de- cree. Following promulgation of a final rule, it would no longer be relevant. As a result, the rule does not include this provision). Exhibit 1 ...... Minimum Standards for Licensed Programs ...... 410.402 ...... None. Exhibit 2 ...... Instructions to Service Officers re: Processing, Treat- N/A ...... None (Note: ORR provides notice to its Federal, con- ment, and Placement of Minors. tractor, and care provider staff of provisions for the processing, treatment, and placement of UAC in the ORR Policy Guide and Manual of Procedures. The provisions specified in Ex. 2 are incorporated into these documents). Exhibit 3 ...... Contingency Plan ...... 410.209 ...... None. (Note: The rule also makes provisions for influx care facilities). Exhibit 4 ...... Agreement Concerning Facility Visits Under Paragraph N/A ...... Special provisions for Plaintiffs’ counsel are not relevant 33. or substantive terms of the FSA, and are not included in the rule. Exhibit 5 ...... List of Organization to Receive Information ...... N/A ...... Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule. Exhibit 6 ...... Notice of Right to Judicial Review ...... N/A ...... None. (Note: The rule does not expressly provide for ju- dicial review of placement/compliance, as a regulation cannot confer jurisdiction on Federal court.

a. DHS this rule is implementing an alternative hold minors obtain state, county, or A primary change to DHS’s current licensing process. To codify the municipal licensing where appropriate operational environment resulting from requirements of the FSA, facilities that licenses are available. If no such

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licensing regime is available, however, guardian, in FRCs beyond the affected minors and their accompanying DHS will employ an outside entity to approximate 20 day point. parents or legal guardians in FRCs, DHS ensure that the facility complies with ICE is unable to estimate how long recognizes that generally only certain family residential standards established detention would be extended for some groups of aliens are likely to have their by ICE and that meet the requirements categories of minors and their length of stay in an FRC increased as a for licensing under the FSA, thus accompanying adults in FRCs due to result of this rule, among other factors. fulfilling the intent of obtaining a this rule. The average length of stay in For instance, aliens who have received license from a state or local agency. This the past is not a reliable source for a positive credible fear determination, provides effectively the same future projections, and the average and who are a flight risk or danger, may substantive assurances that the state- length of stay prior to the court be more likely to be held throughout licensing requirement exists to provide. decisions in 2015 and 2017 reflect other their asylum proceedings. Likewise, policy decisions that will not be directly ICE currently meets the licensing aliens who have received a negative affected by this rule. The number of credible fear determination, have requirements established by this rule by days some minors and their requested review of the determination requiring FRCs to adhere to the Family accompanying adults may be detained by an immigration judge, had the Residential Standards and monitoring depends on several factors, including a negative determination upheld, and are the FRCs’ compliance through an number of factors that are beyond the existing contract. Thus, DHS will not scope of this rule. These may include awaiting removal, are likely to be held incur additional costs in fulfilling the the number of minors and their until removal can be effectuated. In FY requirements of the alternative licensing accompanying adults who arrive in a 2017, 16,807 minors in FRCs went process, given the third party licensing facility on a given day; the timing and through the credible fear screening will continue to perform auditing outcome of immigration court process and were released. In FY 2018, reports that currently take place. proceedings before an immigration 22,352 minors in FRCs went through the However, most states do not offer judge; whether an individual is eligible credible fear screening process and were licensing for facilities like the FRCs.76 for and granted parole or bond; issuance released. Table 18 shows for FY 2017 Therefore, to meet the terms of the FSA, of travel documents by foreign and FY 2018 the number of minors who minors who are not UACs are generally governments; transportation schedule went through the credible fear screening held in FRCs for less than and availability; the availability of bed process who were released from FRCs. approximately 20 days (see Table 10). space in an FRC; and other laws, It does not include those minors who As all FRCs would be licensed, or regulations, guidance, and policies were removed while detained at an FRC. considered licensed, under this rule, the regarding removal not subject to this Those minors who were removed from rule would allow the government to rule. an FRC would not have their lengths of extend detention of some minors, and Although DHS cannot reliably predict stay increased pursuant to the changes their accompanying parent or legal the increased average length of stay for in this rule.

TABLE 18—FY 2017 & FY 2018 MINORS AT FRCS WHO WENT THROUGH CREDIBLE FEAR SCREENING PROCESS

Numbers of minors at FRCs FY 2017 FY 2018

Positive Credible Fear Determinations ...... 14,993 20,219 Negative Credible Fear Determinations ...... 349 358 Immigration Judge Review Requested ...... 317 309 Immigration Judge Review Not Requested ...... 32 49 Administratively Closed ...... 1,465 1,775

Of the 14,993 minors in FY 2017 and of removal at the time of their release or negative credible fear determinations the 20,219 in FY 2018 who had positive subsequently received final orders of (349), plus administratively closed cases credible fear determinations, about 99 removal following their release within (1,465), plus those who were released percent were paroled or released on the same FY. Minors like these 842 in and either had final orders of removals their own recognizance. The remaining FY 2017 and 1,434 in FY 2018 may be at the time of their release or one percent of minors are those in held in detention longer as a result of subsequently received final orders categories that might have their length this rule. While DHS generally expects following their release (842), or 2,787. In of stay in an FRC increased due to this an increase in the average length of stay FY 2018, the total number of minors rule. to affect only these groups, there may be who might have been detained longer at Separate from the population of others who may be affected such as an FRC is estimated to be the number minors referenced in Table 18, members family units who are not eligible for of minors in an FRC who were not of a family unit with administratively parole. paroled or released on their own final orders of removal are likely to be In FY 2017, the total number of recognizance (96), plus the number of held until removed after this rule is minors who might have been detained such minors who had negative credible finalized. 842 such minors who were longer at an FRC is estimated to be the fear determinations (358), plus detained and released at FRCs during number of minors in an FRC who were administratively closed cases (1,775), FY 2017 and 1,434 such minors who not paroled or released on order of their plus those who were released and either were detained and released at FRCs own recognizance (131), plus the had final orders of removal at the time during FY 2018 either had final orders number of such minors who had of their release or subsequently received

76 See the discussion of the definition of ‘‘licensed facility’’ supra.

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final orders following their release surrounding the factors that make up a result of this rule, the cost would (1,434), or 3,663. While the above the estimate of the average length of stay depend on the type of facility, facility analysis reflects the number of minors and the number of minors that may have size, location, and a number of other in these groups in the FY 2017 and an increased length of stay. variables. ICE notes as an example that 2018, DHS is unable to forecast the These variable costs represent the an additional 960 beds at Dilley would future total number of such minors. The marginal cost for filling any available cost approximately $80 million. numbers of accompanying parents or bed space at current facilities. They are This rule also changes current ICE legal guardians are not included in this not, however, representative of the total practices for parole determinations to estimate. The 3,663 minors and their additional cost for bed space beyond align them with applicable statutory and parents or legal guardians will not all be existing contracts. If ICE awarded regulatory authority. ICE is currently encountered at the same time, but over additional contracts for expanded bed complying with the June 27, 2017, court the course of a year, and would be space as a result of this rule, ICE would order while it is on appeal. In detained at one of the three existing also incur additional fixed costs and complying, every detained minor in FRCs during their removal proceedings. variable costs. ICE estimates under expedited removal proceedings and The remaining factor in estimating the existing contracts it would spend awaiting a credible fear determination costs attributed to a potentially $319.37 per person per day ($319.37 or determined not to have a credible fear increased length of stay for these groups includes both fixed and variable) to receives an individualized parole of minors and their accompanying provide contracted services at an FRC determination under the considerations parent or legal guardian are the per- and assumes a similar per-person per- laid out in 8 CFR 212.5(b). However, person per-day cost to provide detention day cost were ICE to expand the number under the rule, ICE would revert to its services. As discussed previously, of beds beyond current FRC capacity as practice prior to the 2017 court order for current FRCs are largely funded through a result of this rule.77 those minors in expedited removal fixed-price agreements based on the full DHS notes that while additional or proceedings, using its parole authorities capacity of our current facilities and longer detention could result in the under 8 CFR 235.3 for this category of thus are not primarily dependent on the need for additional bed space—another aliens in accordance with the standards number of beds filled. Accordingly, potential policy outcome as a result of implemented by Congress. See 8 U.S.C. facilities are generally ready to this rule—at this time, ICE is unable to 1225(b)(1)(B)(iii)(IV) (‘‘Any alien subject accommodate the number of families determine how the number of FRCs may to [expedited removal] shall be detained stipulated in their contracts. Therefore, change due to this rule and thus if this pending a final determination of DHS believes the best proxy for the rule would result in costs for building credible fear of persecution and, if marginal cost of services for filling any additional bed space. There are many found not to have such a fear, until available bed space at current FRCs are factors that would be considered in removed.’’). For aliens who are in the variable contract costs paid by ICE opening a new FRC, some of which are expedited removal proceedings and are to the private contractor and outside the scope of this regulation, pending a credible fear determination or government entity who operate and such as whether such a facility would who have been found not to have such maintain the FRCs. The fixed and be appropriate, based on the population fear, release on parole can only satisfy variable contract costs were obtained of aliens crossing the border, anticipated this standard when there is a medical from ICE Office of Acquisition capacity, projected average daily necessity or a law enforcement need. Management. For Berks, there is a $16 population, and projected costs. This change may result in fewer such per-person, per-day fee in addition to Moreover, such a decision depends on minors or their accompanying parent or the monthly fixed contract rate. receiving additional resources from legal guardians being released on parole. Assuming that the contract terms are the Congress, and ICE has to balance the Aliens in expedited removal same in the future, an increased number detention of families with the detention proceedings are not generally detained of days that all individuals would be at and removal of single adults. in mandatory custody for long periods an FRC may also increase this total While DHS cannot conclusively of time. Either a removal order is issued variable fee amount. Due to the determine the impact on detention costs within a short amount of time or a uncertainty surrounding estimating an due to factors outside of the scope of Notice to Appear is issued, which may increased length of stay and the number this regulation, beginning with the make the alien eligible for various forms of aliens this may affect, the total fluctuating number of families of release. Consequently, DHS does not incremental cost of this per-day per- apprehended at the Southwest border, it anticipate that these changes will result person fee is not estimated. does acknowledge the three existing in extended periods of detention for Educational services are provided at FRCs could potentially reach capacity as minors who are in expedited removal the Berks and Karnes FRCs at a variable a result of additional or longer detention proceedings. cost per-student, per-day. The cost at for certain individuals. This estimate is The TVPRA reinterpretation may also Karnes is $75 per-student, per-day. The based on current contract terms staying change the current DHS operations of FY 2018 costs for education at Berks the same in the future and reflects an releasing minors only to parents or legal was $75,976 per month. The FY 2017 increase in the average length of stay for guardians by adding language to permit costs at Berks for education was $79 the affected groups of minors, release of a minor to someone other than per-student, per-day. There is a fixed potentially up to 2,878 using FY 2017 a parent or legal guardian, specifically monthly cost for educational services at data and 3,663 using FY 2018 data, plus an adult relative (brother, sister, aunt, Dilley of $342,083; it is not dependent their accompanying parent or legal uncle, or grandparent) not in detention. on the number of students per day. guardian. If bed space were increased as DHS is unable to estimate the potential Assuming again that future contract costs and burden of training CBP and terms are the same, the total education 77 See Congressional Budget Justification FY ICE officers to operationalize this cost may increase if certain aliens, like 2018—Volume II, U.S. Immigration and Customs change in regards to vetting these adult the groups described above, are Enforcement, page 50, ‘‘An average daily rate for relatives and coordinating the releases. family beds can be calculated by dividing the total detained longer. However, the funding requirement of $291.4 million by the DHS expects that this change may incremental variable education cost is projected average daily population (ADP) of 2,500 increase the releases of accompanied not estimated because of the uncertainty for a rate of $319.37.’’ minor children from DHS custody in

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FRCs and could increase the detention decree and shift to executive which will ensure that family detention of single adults. government via regulation. Under the remains an effective enforcement tool. With respect to CBP, the rule is not FSA, the government operates in an This rule does not require the anticipated to have an impact on current uncertain environment subject to future addition of new bed space, but by operations because CBP is currently court interpretations of the FSA that allowing alternative licensing for FRCs implementing the relevant and may be difficult or operationally it does remove a barrier to DHS’s use of substantive terms of the FSA, the HSA, impractical to implement or could its Congressionally-authorized detention and the TVPRA. otherwise hamper operations. With the authority, allowing families to stay b. HHS regulations, DHS and HHS, along with together through the duration of their members of the public, would have immigration proceedings. HHS has complied with the FSA since certainty as to the agencies’ legal By codifying the FSA, HHS has the HSA’s transfer of responsibility to obligations and operations. opened the underlying basis for its ORR for the care and custody of UAC in Without codifying the FSA as in this policies and procedures for notice and 2002. The rule would implement the rule, family detention is a less effective comment. The discussion our final rule provisions of the FSA, and related tool to meet the enforcement mission of in the preamble explains that HHS is statutes. Accordingly, HHS does not ICE. In many cases, families do not and large adopting the specific text from expect this rule to impose any appear for immigration court hearings additional costs, beyond those costs the FSA with little variance. The main after being released from an FRC, and incurred by the Federal Government to exception would be the transfer bond even when they do, many more fail to establish the 810 hearings process redetermination hearings from courts to comply with the lawfully issued within HHS. a hearing officer within HHS. HHS This rule will shift responsibility for removal orders from the immigration believes this will result in more custody redetermination hearings for courts and some families engage in expedient review of cases, with new UACs, now to be referred to as 810 dilatory legal tactics when ICE works to added protections for UAC (by placing hearings, from DOJ to HHS. We estimate enforce those orders. In addition, if an the burden of initial production on the that some resources will be required to alien is not detained at the time a final government) to deny release of a UAC implement this shift. We believe that order of removal is issued, in many based on danger or risk of flight. this burden will fall on DOJ and HHS cases ICE will have to expend The regulations are also designed to staff, and we estimate that it will require significant resources to locate, detain, eliminate judicial management, through approximately 2,000–4,000 hours to and subsequently remove the alien in the FSA, of functions Congress implement. This estimate reflects six to accordance with the final order. delegated to the executive branch. Further, according to EOIR, since 12 staff, at the Federal General Schedule 5. Conclusion (GS)13–15 pay level, working full-time January 1, 2014, there have been 3,969 for two months to create the new final removal orders issued for 5,326 This rule implements the provisions system. The costs to implement the 810 cases that began in FRCs and were of the FSA, the HSA, and the TVPRA, hearings could average $250,000 or completed as of March 31, 2019. Of in light of current circumstances and more, paid for by ORR out of the these final removal orders, 2,281 were considering public input received on Refugee and Entrant Assistance issued in absentia. In other words, of the NPRM. The Departments consider Appropriation Account. Ongoing annual completed cases that began in FRCs, 43 current operations and procedures for costs would include one administrative percent were final orders of removal implementing the terms of the FSA, the judge or hearing officer, one full-time issued in absentia. (See Table 2). DHS HSA, and the TVPRA to be the baseline administrative assistant or law clerk, an OIS has found that when looking at all for this analysis. Because these costs are estimated 50 hours of interpretation family unit aliens encountered at the already being incurred, they are not services based on an average of 70 cases Southwest Border from FY 2014 through costs of this rule. The primary source of per year (half of which the government FY 2018, for family units who were new costs for the rule would be a result anticipates that it will not dispute), and detained at FRCs and for those who of the alternative licensing process, 1.5 FTE for ORR staff at the GS 13 level. were not detained at FRCs, the in changes to current ICE parole HHS estimates annual costs to be an absentia rate for completed cases as of determination practices to align them average of $445,000. After this shift in the end of FY 2018 was 66 percent. (See with applicable statutory and regulatory responsibility has been implemented, Table 3). Based on the similar authority, and the costs of shifting we estimate that the rule will lead to no timeframes of these two rates, DHS can hearings from DOJ to HHS. ICE expects change in net resources required for 810 assume that family units who did not the alternative licensing process and hearings, and therefore estimate no start their cases in FRCs have a higher changes to current parole determination incremental costs or savings. in absentia rate. However, this does not practices to extend detention of certain account for other factors that may or minors in FRCs. This may result in 4. Benefits may not have an impact the likelihood additional or longer detentions for The primary purpose of the rule is to of appearance, such as enrollment in a certain minors, increasing annual adopt uniform standards for the custody monitoring program or access to variable costs paid by ICE to the and care of alien juveniles during their representation. However, DHS still operators of current FRCs and costs to immigration proceedings and to ensure concludes that the in absentia rates of the individuals being detained. In that they are treated with dignity and family units even who started their addition, if ICE awarded additional respect, in light of intervening changes cases at an FRC warrants detention contracts for expanded bed space as a in law, circumstance, and agency throughout proceedings. result of this rule, ICE would also incur experience. The rule would thus By departing from the FSA in limited additional fixed costs and variable costs. implement the FSA and thereby cases to reflect the intervening statutory But due to the uncertainty surrounding terminate it. There are added benefits of and operational changes and agency estimating an increased length of stay having set rules (in the CFR), such as experience, DHS is reflecting its existing and the number of aliens this may the ability for the Departments to move discretion to detain families together, as affect, this incremental cost is not from judicial governance via a consent appropriate, given enforcement needs, quantified.

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6. Alternatives minors and UACs continue to be treated Consistent with provisions in the a. No Regulatory Action in accordance with the HSA, and the HSA, and 8 U.S.C. 1232(a), the TVPRA TVPRA, and accounting for changes in places the responsibility for the care and The Departments considered not law, agency expertise, current custody of UACs with the Secretary of promulgating this rule. The operational circumstances, and public Health and Human Services. Prior to the Departments had been engaged in this comment pursuant to the rulemaking transfer of the program, the alternative prior to proposing this rule, provisions of the APA. Commissioner of Immigration and which has required the Government to Naturalization, through a delegation B. Regulatory Flexibility Act adhere to the terms of the FSA, as from the Attorney General, had interpreted by the courts, which also The Regulatory Flexibility Act of 1980 authority ‘‘to establish such regulations rejected the Government’s efforts to (RFA), 5 U.S.C. 601–612, as amended, . . . as he deems necessary for carrying amend the FSA to help it better conform requires Federal agencies to consider out his authority under the provisions of to existing legal and operational the potential impact of regulations on this Act.’’ INA sec. 103(a)(3), 8 U.S.C. realities. Continuing with this small entities during rulemaking. The 1103(a)(3) (2002); 8 CFR 2.1 (2002). In alternative would likely require the term ‘‘small entities’’ comprises small accordance with the relevant savings Government to operate through non- business, not-for-profit organizations and transfer provisions of the HSA, see regulatory means in an uncertain that are independently owned and 6 U.S.C. 279, 552, 557; see also 8 U.S.C. environment subject to currently operated and are not dominant in their 1232(b)(1); the ORR Director now unknown future court interpretations of fields, and governmental jurisdictions possesses the authority to promulgate the FSA that may be difficult or with populations of less than 50,000. regulations concerning ORR’s operationally impracticable to Individuals are not considered by the administration of its responsibilities implement and that could otherwise RFA to be a small entity. under the HSA and TVPRA. hamper operations. The Departments A final regulatory flexibility analysis The response of the agency to any also reject this alternative because it follows. comments filed by the Chief Counsel for does not address the current conflict 1. A statement of the need for, and Advocacy of the Small Business between certain portions of the FSA, the objectives of, the rule. Administration in response to the HSA, and the TVPRA or the current The purpose of this action is to proposed rule, and a detailed statement operational environment, as the FSA is promulgate regulations that implement of any change made to the proposed rule over twenty years old. the relevant and substantive terms of the in the final rule as a result of the b. Comprehensive FSA/TVPRA/Asylum FSA. This rule implements the relevant comments. Regulation and substantive terms of the FSA and DHS did not receive comments from The Departments considered provisions of the HSA and TVPRA the Chief Counsel for Advocacy of the proposing within this regulatory action where they necessarily intersect with Small Business Administration in additional regulations addressing the FSA’s provisions. Publication of response to the proposed rule. further areas of authority under the final regulations will result in 4. A description of and an estimate of TVPRA, to include those related to termination of the FSA, as provided for the number of small entities to which asylum proceedings for UACs. The in FSA paragraph 40. the rule will apply or an explanation of Departments rejected this alternative in 2. A statement of the significant issues why no such estimate is available. order to focus this regulatory action on raised by the public comments in This rule would directly regulate DHS implementing the terms of the FSA, and response to the initial regulatory and HHS. DHS contracts with private provisions of the HSA and TVPRA flexibility analysis, a statement of the contractors and a local government to where they intersect with the FSA’s assessment of the agency of such issues, operate and maintain FRCs, and with provisions. Promulgating this more and a statement of any changes made in private contractors to provide targeted regulation does not preclude the proposed rule as a result of such transportation of minors and UACs. the Departments from subsequently comments. This rule would indirectly affect these issuing regulations to address broader DHS did not receive any public entities to the extent that DHS contracts issues. comments raising issues in response to with them under the terms necessary to the initial regulatory flexibility analysis fulfill the FSA. To the degree this rule c. Promulgate Regulations—Preferred and did not make any revisions to the increases contract costs to DHS private Alternative final rule for small entities. contractors, it would be incurred by the Legacy INS’s successors are obligated Section 462 of the HSA also Federal Government in the cost paid by under the FSA to initiate action to transferred to the ORR Director the contract. publish the relevant and substantive ‘‘functions under the immigration laws ICE currently contracts with three terms of the FSA as regulations. In the of the United States with respect to the operators of FRCs, two of which are 2001 Stipulation, the parties agreed to a care of unaccompanied alien children businesses and the other a local termination of the FSA ‘‘45 days that were vested by statute in, or governmental jurisdiction. ICE and CBP following the defendants’ publication of performed by, the Commissioner of also each have one contractor that final regulations implementing this Immigration and Naturalization.’’ 6 provides transportation. To determine if Agreement.’’ Under this alternative, the U.S.C. 279(a). The ORR Director may, the private contractors that operate and Departments are proposing to for purposes of performing a function maintain FRCs and the private implement the FSA and thereby to transferred by this section, ‘‘exercise all contractors that provide transportation terminate it. In particular, the authorities under any other provision of are small entities, DHS references the Departments are publishing regulations law that were available with respect to Small Business Administration (SBA) that generally mirror the relevant and the performance of that function to the size standards represented by business substantive terms of the FSA as official responsible for the performance average annual receipts. SBA’s Table of regulations, while maintaining the of the function’’ immediately before the Small Business Size Standards is operational flexibility necessary to transfer of the program. 6 U.S.C. matched to the North American continue operations and ensuring that 279(f)(1). Industry Classification System (NAICS)

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for these industries.78 To determine if maintained by private contractors or a factors that would be considered in the local government that operates and local government, comply with these opening a new FRC and at this time ICE maintains an FRC is a small entity, DHS provisions, and will continue to comply is unable to determine if this rule would applies the 50,000 size standard for through future contract renewals. To the result in additional bed space. governmental jurisdictions. extent this rule increases variable As discussed above, DHS would incur DHS finds that the revenue of the contract costs, such as a per student per these potential costs through the cost private contractors that operate and day education cost, to any detention paid for the contract with these maintain two of the three FRCs to be facilities, the cost increases would be facilities, and could incur costs to build greater than the SBA size standard of passed along to the Federal Government new facilities or add additional beds. the industry represented by NAICS in the cost paid for the contract. There are no cost impacts on the 531110: Lessors of Residential Buildings However, DHS cannot say with certainty contracts for providing transportation and Dwellings. The size standard how much, if any, increase in variable because this rule codifies current classified by the SBA is $38.5 million education costs would result from this operations. for lessors of buildings space to the rule. 6. A description of the steps the Federal Government by Owners.79 The A primary source of new costs for the agency has taken to minimize the county population of the local rule is as a result of the alternative significant economic impact on small government that operates and maintains licensing process. ICE currently fulfills entities consistent with the stated the other FRC is over 50,000, based on the requirements being finalized as an objectives of applicable statutes, 2018 U.S. Census Bureau annual alternative to licensing through its including a statement of the factual, resident population estimates.80 existing FRC contracts. To codify the policy, and legal reasons for selecting DHS finds that the revenue of the two requirements of the FSA, this rule the alternative adopted in the final rule private contractors that provide requires that facilities that hold minors and why each of the other significant transportation to minors, in some cases obtain state, county, or municipal alternatives to the rule considered by their family members, and to UACs for licensing where appropriate licenses are the agency which affect the impact on DHS to be greater than the SBA size available. If no such licensing regime is small entities was rejected. standard of these industries.81 The SBA available, however, DHS will employ an The Departments are not aware any size standard for NAICS 561210 outside entity with relevant audit alternatives to the rule which Facilities Support Services is $38.5 experience to ensure that the facility accomplish the stated objectives that million. The SBA size standards for complies with family residential would minimize economic impact of the NAICS 561612 Security Guards and standards established by ICE and that rule on small entities. meet the requirements for licensing Patrol Services is $20.5 million. C. Small Business Regulatory under the FSA. That would fulfill the The changes to DHS regulations Enforcement Fairness Act of 1996 would not directly impact any small goals of obtaining a license from a state entities. or local agency. Most States do not offer As indicated in the Executive Orders Currently, HHS funds 53 grantees to licensing for facilities like the FRCs.82 12866, 13563: Regulatory Review, provide services to UACs. HHS finds Therefore, to meet the terms of the FSA, Section VII, the rule may have an effect that most of the 53 current grantees, the minors are generally held in FRCs for on the government and its contractors majority of which are non-profits (49 less than 20 days (see Table 10). As all who provide operation and maintenance out of 53), do not appear to be dominant FRCs would be licensed under this rule, of its family residential facilities. DHS in their field. Consequently, HHS the rule may result in extending and HHS prepared both initial and final believes all 53 grantees are likely to be detention of some minors and their RFA analyses. small entities for the purposes of the accompanying parent or legal guardian D. Unfunded Mandates Reform Act in FRCs beyond 20 days. Additionally, RFA. The Unfunded Mandates Reform Act 5. A description of the projected this rule would change ICE parole of 1995 (UMRA), Public Law 104–4, 109 reporting, recordkeeping, and other determination practices, which may Stat. 48 (codified at 2 U.S.C. 1501 et compliance requirements of the rule, result in fewer aliens being paroled. seq.), is intended, among other things, to including an estimate of the classes of An increase in the average length of curb the practice of imposing unfunded small entities which will be subject to detention may increase the variable Federal mandates on State, local, and the requirement and the type of costs paid by ICE to the private tribal governments. Title II of the Act professional skills necessary for contractors who operate and maintain requires each Federal agency to prepare preparation of the report or record. current FRCs, as compared to the a written statement assessing the effects The rule would implement the current operational environment. In of any Federal mandate in a proposed or relevant and substantive terms of the addition, if ICE awarded additional final agency rule that may result in the FSA in regulations. ICE believes the contracts for expanded bed space as a expenditure of $100 million or more FRCs, which are operated and result of this rule, ICE would also incur additional fixed costs and variable costs. (adjusted annually for inflation) in any 1 year by State, local, and tribal 78 U.S. Small Business Administration, Tables of Due to many uncertainties surrounding Small Business Size Standards Matched to NAICS the forecast, DHS is unable to estimate governments, in the aggregate, or by the Codes (Oct. 1, 2017), available at https:// the incremental variable costs due to private sector. 2 U.S.C. 1532(a). The www.sba.gov/sites/default/files/files/Size_ value equivalent of $100 million in 1995 _ _ this rule. Refer to Section VI.A. Standards Table 2017.xlsx. adjusted for inflation to 2017 levels by 79 DHS obtained NAICS codes and 2018 annual Executive Orders 12866 and 13563: sales data from Hoovers.com. Regulatory Review for the description of the Consumer Price Index for All Urban 80 Annual Estimates of the Resident Population the uncertainties. In addition, DHS Consumer (CPI–U) is $161 million. for Counties: April 1, 2010 to July 1, 2018. Source: notes that additional or longer detention This rule may not exceed the $100 U.S. Census Bureau, Population Division, https:// could result in the need for additional million expenditure threshold in any 1 www.census.gov/data/tables/time-series/demo/ year when adjusted for inflation. popest/2010s-counties-total.html. bed space; however, there are many 81 DHS obtained NAICS codes and 2018 annual Though this rule would not result in sales data from Hoovers.com and 82 See the discussion of the definition of such an expenditure, the Departments ReferencesUSA.com. ‘‘licensed facility’’ supra. discuss the effects of this rule elsewhere

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in this preamble. Additionally, UMRA This rule complies with settlement approach is fully consistent with DHS’s excludes from its definitions of ‘‘Federal agreements, court orders, and statutory historical relationship to State and local intergovernmental mandate,’’ and requirements, most of whose terms have agencies in this context. ‘‘Federal private sector mandate’’ those been in place for over 20 years. This Typically, HHS enters into regulations imposing an enforceable rule would not require additional cooperative agreements or contracts duty on other levels of government or information collection requirements with non-profit organizations to provide the private sector which are a beyond those requirements. The shelter, care, and physical custody for ‘‘condition of Federal assistance.’’ 2 reporting requirements associated with UACs in a facility licensed by the U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA those practices have been approved appropriate State or local licensing provides the Departments with no direct under the requirements of the authority. Where HHS enters into authority to mandate binding standards Paperwork Reduction Act and in cooperative agreements or contracts on facilities of state and local accordance with 5 CFR part 1320. ACF with a state licensed facility, ORR governments or on operations of private received approval from OMB for use of requires that the non-profit organization sector entities. Instead, these its forms on June 26, 2019, with an administering the facility abide by all requirements would impact such expiration date of June 30, 2022 (OMB applicable State or local licensing governments or entities only to the Control Number 0970–0278). regulations and laws. ORR designed extent that they make voluntary Separately, ACF received approval from agency policies and these regulations as decisions to contract with the OMB for its placement and service well as the terms of HHS cooperative Departments. Compliance with any forms on July 6, 2017, with an agreements and contracts with the standards that are not already otherwise expiration date of July 31, 2020 (OMB agency’s grantees/contractors to in place resulting from this rule would Control Number 0970–0498); a form complement appropriate State and be a condition of ongoing Federal associated with the specific consent licensing rules, not supplant or replace assistance through such arrangements. process is currently pending approval the requirements. Therefore, this rulemaking contains with OMB (OMB Control Number 0970– Therefore, in accordance with section neither a Federal intergovernmental 0385). 6 of Executive Order 13132, it is mandate nor a private sector mandate. G. Executive Order 13132: Federalism determined that this rule does not have E. Congressional Review Act sufficient federalism implications to This final rule does not have warrant the preparation of a federalism While Executive Order 12866 has a substantial direct effects on the States, summary impact statement. standard of whether the rule may have on the relationship between the an impact of $100 million or more in National Government and the States, or H. Executive Order 12988: Civil Justice any given year, the CRA standard is on the distribution of power and Reform whether a rule has or is likely to have responsibilities among the various This rule meets the applicable an annual impact of $100 million or levels of government. This final rule standards set forth in sections 3(a) and more. In the vast majority of cases, if a implements the FSA by codifying the 3(b)(2) of Executive Order 12988, Civil rule is economically significant it is also Departments’ practices that comply with Justice Reform, to minimize litigation, major. In this case, however, given the terms of the FSA and relevant law eliminate ambiguity, and reduce budget uncertainties, ICE’s overall need for the processing, transfer, and care and burden. to prioritize bed space for operational custody of alien juveniles. In codifying I. Executive Order 13211: Actions considerations (such as the recent use of these practices, the Departments were Concerning Regulations That the Karnes FRC for single adult female mindful of their obligations to meet the Significantly Affect Energy Supply, detention), and other operational requirements of the FSA while also Distribution, or Use flexibilities preserved under this rule, it minimizing conflicts between State law is not likely that this rule will result in and Federal interests. Executive Order 13211 requires an annual economic impact of $100 Insofar as the rule sets forth standards agencies to consider the impact of rules million or more. The Office of that might apply to immigration that significantly impact the supply, Information and Regulatory Affairs has detention facilities and holding facilities distribution, and use of energy. DHS has thus determined that this rule is not operated by contract with State and reviewed this rule and determined that major under 5 U.S.C. 804. local governments and private entities, it is not a ‘‘significant energy action’’ The Departments note, however, that this rule has the potential to affect the under the order because, while it is a the rule will still be published with a States, although it would not affect the ‘‘significant regulatory action’’ under 60-day delayed effective date. relationship between the National Executive Order 12866, it does not have Government and the States or the a significant adverse effect on the F. Paperwork Reduction Act distribution of power and supply, distribution, or use of energy. All Departments are required to responsibilities among the various The Administrator of the Office of submit to OMB for review and approval, levels of government and private Information and Regulatory Affairs has any reporting or recordkeeping entities. With respect to the State and not designated it as a significant energy requirements inherent in a rule under local agencies, as well as the private action. Therefore, this rule does not the Paperwork Reduction Act of 1995, entities, that contract with DHS and require a Statement of Energy Effects Public Law 104–13, 109 Stat. 163 (1995) operate these facilities across the under Executive Order 13211. (codified at 44 U.S.C. 3501 et seq.). This country, the FSA provides DHS with no rule does not create or change a direct authority to mandate binding J. National Environmental Policy Act collection of information, therefore, is standards on their facilities. But these (NEPA) not subject to the Paperwork Reduction requirements will impact the State, The Departments certified that the Act requirements. local, and private entities only to the proposed rule did not require an However, as required by the extent that they make voluntary Environmental Assessment or Paperwork Reduction Act of 1995 (44 decisions to contract with DHS for the Environmental Impact Statement under U.S.C. 3507(d)), ACF submitted a copy processing, transportation, care, or the National Environmental Policy Act of this section to OMB for its review. custody of alien juveniles. This (NEPA) because it is an action that does

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not individually or cumulatively have a require indefinite detention, which whilst others are released. Thus, significant effect on the human affects the quality of the human existing FRC capacity levels would not environment and it is covered within environment. Another commenter stated necessarily change. each Department’s list of Categorically that neither the HHS CATEX nor the Substantive proposals regarding FRC Excluded (CATEX) actions. two DHS CATEXs identified in the space that could be meaningfully Comments. The Departments received proposed rule apply. The commenter analyzed in accordance with the NEPA two comments representing the views of said that HHS relied on a CATEX for have not been proposed. The extent to eight organizations on this certification. grants for social services because its which new FRCs are constructed, or The commenters contend that: state licensed facilities are operated existing FRCs are utilized, is dependent • None of the cited CATEXs apply to under social service grants, but that the on numerous factors outside the scope the proposed rule; CATEX includes an exception for of the final rule, which does not • the rulemaking will likely have projects that involve construction, mandate operational requirements significant effects resulting from the renovation, or any changes in land use. pertaining to new FRCs. For example, expansion of the detention system that The commenter suggested that HHS’ DHS/ICE decisions to increase FRC would constitute ‘‘extraordinary contention that the exception does not capacity would consider the costs circumstances’’ invalidating the use of apply because HHS lacks construction associated with housing families and any categorical exclusions; authority is simply an attempt to evade the availability of Congressional • the rulemaking is part of a larger further NEPA review. Additionally, this appropriations. The final rule neither action, invalidating the reliance on a commenter contended that HHS’ prescribes expansion of detention space categorical exclusion; authority and actions with respect to nor describes any substantive, reliable • NEPA applies to broad Federal UACs reach beyond giving grants to information regarding change in actions, such as the adoption of new state-licensed facilities because they detention capacity that could be agency programs; make age determinations, transfer reasonably evaluated under NEPA. • that the proposed rule significantly children between HHS facilities, Thus, the commenters’ suggestions that changes DHS’s operation with regard to determine if a child is an escape risk, the proposed rule will result in unaccompanied alien children and and release the children from HHS ‘‘tremendous growth’’ in detention family units entering the United States; custody. The same commenter claimed capacity with ‘‘cumulatively significant • the proposed rule will cause the that the Departments’ CATEXs fail impacts on the human environment’’ or construction of dozens of new facilities; because NEPA makes it unlawful to that it will result in the ‘‘construction of • that the proposed rule, if apply CATEXs if there is the potential dozens of new encampments and implemented, would require indefinite for significant impacts. detention facilities’’ are highly detention of family units. Response. The commenters suggested speculative and not supported by the The commenters contend that if the that the proposed rule will likely have rulemaking. final rule adopts everything in the significant environmental effects The commenters also suggested that proposed rule, new facilities will be resulting from the expansion of the extraordinary circumstances exist due to required to be built, and the detention system, but neither the the degree to which the proposed rule construction and operation of these proposed rule nor the final rule specify will affect sensitive environments, facilities will produce environmental or compel any expansion in detention public health and safety, and effects such as pollution, increased capacity. DHS has indicated in the cumulative impacts. But again, the final flooding risk, and destruction of wildlife NPRM that it is unable to determine rule has no immediate significant effect habitats, wetlands, and scenic areas. how the number of FRCs might change on the environment, and any future The commenters also suggested that due to this final rule. Many factors, effect related to hypothetical surrounding communities, migrant including factors outside of the scope of circumstances is too speculative to children, and construction workers the final rulemaking that cannot be evaluate. The final rule does not compel might be exposed to toxic contaminants predicted (such as congressional the new development or repurposing of FRCs or changes in FRC capacity. Thus, and increased traffic and garbage from appropriations) or are presently too there is no substantive nexus of the final the operations of these facilities. speculative, would need to be rule with environmental health and One of the commenters stated that considered by DHS prior to opening safety at FRCs that would pose an DHS was incorrect in its application of new detention space. While the new construction, extraordinary circumstance. a CATEX to the proposed rule because renovation, or repurposing of facilities One commenter suggested that an EIS DHS was evaluating the proposed rule for FRCs is one potential future should be prepared because the effects only (the implementation of the FSA), consequence of the final rule, the final of the regulatory changes are highly instead of considering the rulemaking as rule itself does not prescribe increases controversial, but highly controversial part of a larger action that includes the in FRC capacity or propose any for NEPA purposes means there is a Zero Tolerance Policy 83 and the locations where new facilities might be substantial dispute as to the size, nature, implementation of Executive Order built. The final rule also does not or effect of an action. The existence of 13841, Affording Congress an require longer detention of family units. public opposition to a use does not of Opportunity to Address Family Although longer detention is made itself make a proposal highly Separation, June 20, 2018. possible by the final rule, the controversial. DHS has determined that One commenter stated that neither environmental impacts from the the effects of the final rule are not DHS CATEX identified in the proposed operation of existing FRCs would not highly controversial in terms of rule, CATEX A3(b) or A3(d), is foreseeably change with longer periods scientific validity, are not likely to be applicable and that the proposed rule is of detention for members of alien family highly uncertain, and are not likely to a new policy and regulation that would units. Potentially longer detention times involve unique or unknown do not translate to changes in capacity environmental risks. If, in the future, 83 See Memorandum from Jeff Sessions to Federal Prosecutors along the Southwest Border, Zero- of FRCs; it could just mean that certain DHS were to propose the construction Tolerance for Offenses under 8 U.S.C. 1325(a) (Apr. members of alien family units are or renovation of facilities for FRCs, 6, 2018). detained for longer periods of time those projects would be subjected to

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appropriate NEPA analysis for their HHS’ UAC Program’s procedures. The adoption of regulations and guidelines potential environmental impact at that UAC Program is already run in pertaining to such grants. It is notable time. DHS has determined that this compliance with the FSA and that both the Homeland Security Act action is not highly controversial and applicable statutes, including as set and the TVPRA encouraged HHS to use does not require an environmental forth in this final rule. NEPA applies grant programs to carry out the program. impact statement (EIS). No when there are ‘‘major Federal actions 6 U.S.C. 279(b)(3) (encouraging ORR to extraordinary circumstances exist that significantly affecting the quality of the use the ‘‘refugee children foster care preclude reliance upon CATEX A3(d). human environment.’’ 42 U.S.C. 4332. system program’’ established using The final rule is not part of a larger However, in this rule HHS is not taking grants for unaccompanied refugee action as some have suggested. The final any Federal action that makes major minors); 8 U.S.C. 1232(i) (authorizing rule is not a part of a larger action changes the status quo or changes use of grants to carry out the UAC because it does not trigger other actions government policy such that it would program). and does not depend on concurrent, ‘‘affect’’ the quality of the human previous, or future actions for its environment. Rather, HHS merely If, in the future, HHS will commit rationale. The final rule does not memorializes some of the existing UAC funds for projects involving compel a program of detaining children program procedures in a regulation, construction, renovation, or changes in and families. As noted in the NPRM, rather than where they reside now, in a land use, HHS would go beyond the DHS currently has three primary settlement agreement, statutes, and the CATEX at 30–20–40, and thus would options for purposes of immigration ORR UAC policy guide. Because the need to evaluate the proper level of custody: (1) Release all family members rule does not change the UAC Program, environmental review required under into the United States, (2) detain the it does not significantly affect the NEPA at that time. parent(s) or legal guardian(s) and either quality of the human environment to HHS disagrees with commenters who release the juvenile to another parent or implicate NEPA. Some commenters contend the HHS portion of the rule will legal guardian or suitable adult relative, have pointed out that the section ‘‘810’’ involve a change in the capacity of the or transfer the child to HHS to be treated hearings as a change from the Flores UAC program or will change activities as UAC, or (3) detain the family unit settlement agreement. With respect to such as the construction of facilities. together by placing them at an 810 hearings, those hearings also Changes to the UAC program’s capacity appropriate FRC during their already occur, but at one component of and need for facilities occur, or do not immigration proceedings. the government—DOJ—instead of at If, in the future, DHS proposes to occur, under the norms that govern the HHS, as set forth in this rule. UAC program preexisting this rule—the commit funds to acquire, build, or The rule neither increases nor renovate facilities to house family units, fundamentally changes the nature of FSA, applicable statutes, and ORR’s DHS might be considering actions those hearings, and transferring the UAC policy guide. This rule does not beyond administrative and regulatory hearings process has no environmental change those norms, but merely places activities falling under CATEX A3(d), effect. Moreover, hearings, in some in regulations. Changes to capacity and would need to evaluate the proper themselves, do not affect human of the program or to construction or use level of environmental review required environment. Therefore, NEPA also of facilities occur for other reasons, such under NEPA at that time. However, as does not apply to that part of the rule. as because of increases in UAC crossing noted previously, this final rule does In addition, to the extent the HHS the border, and are not attributable to not compel or prescribe that DHS portion of the rule could be considered the codification of these rules. subject to NEPA, HHS has determined commit funds for family residential K. Executive Order 12630: detention space, and no substantive that it falls into several exclusions. First, Governmental Actions and Interference proposals for additional FRC space that it falls into a programmatic exclusion, With Constitutionally Protected Property could be meaningfully analyzed under by which HHS has determined that the Rights NEPA have been proposed. rule will not significantly affect the The final rule promulgates regulations human environment or affect an asset. This final rule will not cause a taking that will reflect changes in the Under HHS policy programmatic of private property or otherwise have authorities governing the detention of exclusions are available in instances taking implications under Executive unaccompanied alien children and alien where the program has reviewed the Order 12630, Governmental Actions and family units. The final rule neither actions being taken and concluded that Interference with Constitutionally proposes any actions that would the program or activity will not Protected Property Rights. significantly impact the human normally ‘‘significantly affect’’ the environment nor compels irreversible human environment; or will not L. Executive Order 13045: Protection of and irretrievable commitments of normally affect an asset. In this case, Children From Environmental Health resources. The final rule fits completely again, HHS is merely codifying Risks and Safety Risks within CATEX A3(d), and there are no provisions already found in a settlement extraordinary circumstances that would agreement and thus has concluded that Executive Order 13045 requires preclude the application of this CATEX. the final rule does not affect the human agencies to consider the impacts of Therefore, it is appropriate for DHS to environment, because it does not change environmental health risk or safety risk exclude the final rule from further the human environment as compared to that may disproportionately affect environmental review using CATEX functions currently in operation. In children. The Departments have A3(d). addition, HHS is subject to the reviewed this final rule and determined HHS disagrees with commenters who categorical exclusion listed in section that this rule is an economically contend NEPA applies to the HHS 30–20–40 of the General Administration significant rule but does not create an portion of the rule or requires an Manual (available at: https:// environmental risk to health or risk to environmental assessment or impact www.hhs.gov/hhs-manuals/gam-part- safety that may disproportionately affect statement for such portion. NEPA does 30/302000/index.html) for grants for children. Therefore, the Departments not apply to the HHS portion of the rule, social services, as the UAC program have not prepared a statement under because that portion does not change operates pursuant to grants—and for this executive order.

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M. National Technology Transfer and List of Subjects (i) Minors may be released to a parent, Advancement Act legal guardian, or adult relative (brother, 8 CFR Part 212 sister, aunt, uncle, or grandparent) not The National Technology Transfer Administrative practice and in detention. and Advancement Act of 1995 (15 procedure, Aliens, Immigration, (ii) Minors may be released with an U.S.C. 272 note) directs agencies to use Passports and visas, Reporting and accompanying parent or legal guardian voluntary consensus standards in their recordkeeping requirements. who is in detention. regulatory activities unless the agency 8 CFR Part 236 * * * * * provides Congress, through OMB, with an explanation of why using these Administrative practice and PART 236—APPREHENSION AND standards would be inconsistent with procedure, Aliens, Immigration. DETENTION OF INADMISSIBLE AND applicable law or otherwise 45 CFR Part 410 DEPORTABLE ALIENS; REMOVAL OF ALIENS ORDERED REMOVED impracticable. Voluntary consensus Administrative practice and standards are technical standards (e.g., procedure, Child welfare, Immigration, ■ 3. The authority citation for part 236 specifications of materials, performance, Reporting and recordkeeping is revised to read as follows: design, or operation; test methods; requirements, Unaccompanied alien sampling procedures; and related children. Authority: 5 U.S.C. 301, 552, 552a; 6 U.S.C. management systems practices) that are 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, DEPARTMENT OF HOMELAND 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, developed or adopted by voluntary SECURITY 1225, 1226, 1227, 1231, 1232, 1357, 1362; 18 consensus standards bodies. This rule U.S.C. 4002, 4013(c)(4); 8 CFR part 2. does not use technical standards. 8 CFR Chapter I ■ 4. Section 236.3 is revised to read as Therefore, the Departments did not For the reasons set forth in the follows: consider the use of voluntary consensus preamble, parts 212 and 236 of chapter standards. I of title 8 are amended as follows: § 236.3 Processing, detention, and release of alien minors. N. Family Assessment PART 212—DOCUMENTARY (a) Generally. (1) DHS treats all The Departments have reviewed this REQUIREMENTS; NONIMMIGRANTS; minors and unaccompanied alien children (UACs) in its custody with rule in accordance with the WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE dignity, respect and special concern for requirements of section 654 of the their particular vulnerability. Treasury General Appropriations Act, ■ 1. The authority citation for part 212 (2) The provisions of this section 1999, Public Law 105–277. The impacts continues to read as follows: apply to all minors in the legal custody of the rule on families and family well- Authority: 6 U.S.C. 111, 202(4) and 271; of DHS, including minors who are being are myriad and complex, and 8 U.S.C. 1101 and note, 1102, 1103, 1182 and subject to the mandatory detention discussed in greater detail elsewhere in note, 1184, 1185 note (section 7209 of Pub. provisions of the INA and applicable the preamble. In general, with respect to L. 108–458), 1187, 1223, 1225, 1226, 1227, regulations, to the extent authorized by family well-being, this final rule 1255, 1359; 8 CFR part 2. law. substantially codifies current ■ 2. Amend § 212.5 by revising (b) Definitions. For the purposes of requirements of settlement agreements, paragraphs (b) introductory text, (b)(3) this section: court orders, and statutes, most of introductory text, and (b)(3)(i) and (ii) to (1) Minor means any alien who has whose terms have been in place for over read as follows: not attained eighteen (18) years of age 20 years, as well as HHS’ related and has not been: authorities. The changes implemented § 212.5 Parole of aliens into the United (i) Emancipated in an appropriate States. by this rule are a result of intervening state judicial proceeding; or statutes or operational realities. With * * * * * (ii) Incarcerated due to a conviction (b) The parole of aliens within the respect to the criteria specified in for a criminal offense in which he or she following groups who have been or are section 654(c)(1), for DHS, the rule was tried as an adult. detained in accordance with § 235.3(c) (2) Special needs minor means a places a priority on the stability of the of this chapter would generally be family and the authority and rights of minor whose mental and/or physical justified only on a case-by-case basis for condition requires special services and parents in the education, nurture, and ‘‘urgent humanitarian reasons or treatment as identified during an supervision of their children, within the ‘‘significant public benefit,’’ provided individualized needs assessment as immigration detention context, as the aliens present neither a security risk referenced in paragraph (i)(4)(iii) of this parents maintain parental rights and nor a risk of absconding: section. A minor may have special supervision of their children within * * * * * needs due to drug or alcohol abuse, FRCs. This rule provides an option for (3) Aliens who are defined as minors serious emotional disturbance, mental families to stay together where in § 236.3(b) of this chapter and are in illness or intellectual disability, or a detention is required and appropriate, DHS custody. The Executive Assistant physical condition or chronic illness but also provides for release in some Director, Enforcement and Removal that requires special services or circumstances. The rule also codifies in Operations; directors of field operations; treatment. A minor who has suffered regulation certain statutory policies field office directors, deputy field office serious neglect or abuse may be with respect to the treatment of UACs. directors; or chief patrol agents shall considered a minor with special needs For HHS, the primary specific change in follow the guidelines set forth in if the minor requires special services or the rule beyond current practice is the § 236.3(j) of this chapter and paragraphs treatment as a result of the neglect or movement of hearings from DOJ to HHS (b)(3)(i) through (ii) of this section in abuse. pursuant to § 410.810. That specific determining under what conditions a (3) Unaccompanied alien child (UAC) change does not have a particular minor should be paroled from has the meaning provided in 6 U.S.C. impact on family well being. detention: 279(g)(2), that is, a child who has no

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lawful immigration status in the United located, DHS shall employ an entity of encounter or apprehension and prior States and who has not attained 18 years outside of DHS that has relevant audit to the detention or release of such alien. of age; and with respect to whom: There experience to ensure compliance with (2) Aliens who are no longer UACs. is no parent or legal guardian present in the family residential standards When an alien previously determined to the United States; or no parent or legal established by ICE. Such audits will have been a UAC has reached the age of guardian in the United States is take place at the opening of a facility 18, when a parent or legal guardian in available to provide care and physical and on a regular, ongoing basis the United States is available to provide custody. An individual may meet the thereafter. DHS will make the results of care and physical custody for such an definition of UAC without meeting the these audits publicly available. alien, or when such alien has obtained definition of minor. (10) Influx means a situation in which lawful immigration status, the alien is (4) Custody means within the physical there are, at any given time, more than no longer a UAC. An alien who is no and legal control of an institution or 130 minors or UACs eligible for longer a UAC is not eligible to receive person. placement in a licensed facility under legal protections limited to UACs under (5) Emergency means an act or event this section or corresponding provisions the relevant sections of the Act. Nothing (including, but not limited to, a natural of ORR regulations, including those who in this paragraph affects USCIS’ disaster, facility fire, civil disturbance, have been so placed or are awaiting independent determination of its initial or medical or public health concerns at such placement. jurisdiction over asylum applications one or more facilities) that prevents (11) Non-secure facility means a filed by UACs pursuant to section timely transport or placement of minors, facility that meets the definition of non- 208(b)(3)(C) of the Act. or impacts other conditions provided by secure under state law in the state in (3) Age-out procedures. When an this section. which the facility is located. If no such alien previously determined to have (6) Escape-risk means that there is a definition of non-secure exists under been a UAC is no longer a UAC because serious risk that the minor will attempt state law, a DHS facility shall be he or she turns 18 years old, relevant to escape from custody. Factors to deemed non-secure if egress from a ORR and ICE procedures shall apply. consider when determining whether a portion of the facility’s building is not (e) Transfer of minors who are not minor is an escape-risk include, but are prohibited through internal locks within UACs from one facility to another. (1) In not limited to, whether: the building or exterior locks and egress the case of an influx or emergency, as (i) The minor is currently subject to a from the facility’s premises is not defined in paragraph (b) of this section, final order of removal; prohibited through secure fencing DHS will transfer a minor who is not a (ii) The minor’s immigration history around the perimeter of the building. UAC, and who does not meet the includes: A prior breach of bond, a (12) Office of Refugee Resettlement criteria for secure detention pursuant to failure to appear before DHS or the (ORR) means the U.S. Department of paragraph (i)(1) of this section, to a immigration courts, evidence that the Health and Human Services, licensed facility as defined in paragraph minor is indebted to organized Administration for Children and (b)(9) of this section, which is non- smugglers for his transport, or a Families, Office of Refugee secure, as expeditiously as possible. voluntary departure or previous removal Resettlement. Otherwise, to the extent consistent with from the United States pursuant to a (c) Age determination. (1) For law or court order, DHS will transfer final order of removal; or purposes of exercising the authorities such minor within three (3) days, if the (iii) The minor has previously described in this part, DHS shall minor was apprehended in a district in absconded or attempted to abscond from determine the age of an alien in which a licensed program is located, or state or Federal custody. accordance with 8 U.S.C. 1232(b)(4). within five (5) days in all other cases. (7) Family unit means a group of two Age determination decisions shall be (2) In the case of an emergency or or more aliens consisting of a minor or based upon the totality of the evidence influx, DHS will abide by written minors accompanied by his/her/their and circumstances. guidance detailing all reasonable efforts adult parent(s) or legal guardian(s). In (2) If a reasonable person would that it will take to transfer all minors determining the existence of a parental conclude that an individual is an adult, who are not UACs as expeditiously as relationship or a legal guardianship for despite his or her claim to be under the possible. purposes of this definition, DHS will age of 18, DHS may treat such person as (f) Transfer of UACs from DHS to consider all available reliable evidence. an adult for all purposes, including HHS. (1) All UACs apprehended by If DHS determines that there is confinement and release on bond, DHS, except those who are processed in insufficient reliable evidence available recognizance, or other conditions of accordance with 8 U.S.C. 1232(a)(2), that confirms the relationship, the release. In making this determination, will be transferred to ORR for care, minor will be treated as a UAC. an immigration officer may require such custody, and placement in accordance (8) Family Residential Center (FRC) an individual to submit to a medical or with 6 U.S.C. 279 and 8 U.S.C. 1232. means a facility used by ICE for the dental examination conducted by a (2) DHS will notify ORR within 48 detention of family units. medical professional or other hours upon the apprehension or (9) Licensed facility means an ICE appropriate procedures to verify his or discovery of a UAC or any claim or detention facility that is licensed by the her age. suspicion that an unaccompanied alien state, county, or municipality in which (3) If an individual previously detained in DHS custody is under 18 it is located, if such a licensing process considered to have been an adult is years of age. exists. Licensed facilities shall comply subsequently determined to be under (3) Unless exceptional circumstances with all applicable state child welfare the age of 18, DHS will then treat such are present, DHS will transfer custody of laws and regulations and all state and individual as a minor or UAC as a UAC as soon as practicable after local building, fire, health, and safety prescribed by this section. receiving notification of an ORR codes. If a licensing process for the (d) Determining whether an alien is a placement, but no later than 72 hours detention of minors accompanied by a UAC. (1) Time of determination. after determining that the minor is a parent or legal guardian is not available Immigration officers will make a UAC per paragraph (d) of this section. in the state, county, or municipality in determination as to whether an alien In the case of exceptional which an ICE detention facility is under the age of 18 is a UAC at the time circumstances, DHS will abide by

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written guidance detailing the efforts (2) DHS custodial care immediately immigration proceedings are concluded, that it will take to transfer all UACs as following apprehension. (i) Following whichever occurs earlier. If immigration required by law. the apprehension of a minor or UAC, proceedings are concluded and result in (4) The following relate to the DHS will process the minor or UAC as a final order of removal, DHS will conditions of transfer of UACs with expeditiously as possible. Consistent detain the minor for the purpose of unrelated detained adults: with 6 CFR 115.114, minors and UACs removal. If immigration proceedings (i) UACs will not generally be shall be held in the least restrictive result in a grant of relief or protection transported with unrelated detained setting appropriate to the minor or from removal where both parties have adults. A UAC will not be transported UAC’s age and special needs, provided waived appeal or the appeal period with an unrelated detained adult(s) that such setting is consistent with the defined in 8 CFR 1003.38(b) has unless the UAC is being transported need to protect the minor or UAC’s expired, DHS will release the minor. from the place of apprehension to a DHS well-being and that of others, as well as (1) A minor who is not a UAC facility or if separate transportation is with any other laws, regulations, or referenced under this paragraph (i)(1) otherwise impractical or unavailable. legal requirements. DHS will hold may be held in or transferred to a (ii) When separate transportation is minors and UACs in facilities that are suitable state or county juvenile impractical or unavailable, necessary safe and sanitary and that are consistent detention facility, or a secure DHS precautions will be taken to ensure the with DHS’s concern for their particular detention facility, or DHS contracted UAC’s safety, security, and well-being. vulnerability. Facilities will provide facility having separate If a UAC is transported with any access to toilets and sinks, drinking accommodations for minors, whenever unrelated detained adult(s), DHS will water and food as appropriate, access to the Field Office Director and the ICE separate the UAC from the unrelated emergency medical assistance as supervisory or management personnel adult(s) to the extent operationally needed, and adequate temperature and have probable cause to believe that the feasible and take necessary precautions ventilation. DHS will provide adequate minor: for protection of the UAC’s safety, supervision and will provide contact (i) Has been charged with, is security, and well-being. with family members arrested with the chargeable with, or has been convicted (g) DHS procedures in the minor or UAC in consideration of the of a crime or crimes, or is the subject of apprehension and processing of minors safety and well-being of the minor or delinquency proceedings, has been or UACs—(1) Processing—(i) Notice of UAC, and operational feasibility. UACs adjudicated delinquent, or is chargeable rights and request for disposition. Every generally will be held separately from with a delinquent act or acts, that fit minor or UAC who enters DHS custody, unrelated adult detainees in accordance within a pattern or practice of criminal including minors and UACs who with 6 CFR 115.14(b) and 115.114(b). In activity; request voluntary departure or request the event that such separation is not (ii) Has been charged with, is to withdraw their application for immediately possible, UACs in facilities chargeable with, or has been convicted admission, will be issued a Form I–770, covered by 6 CFR 115.114 may be of a crime or crimes, or is the subject of Notice of Rights and Request for housed with an unrelated adult for no delinquency proceedings, has been Disposition, which will include a more than 24 hours except in the case adjudicated delinquent, or is chargeable statement that the minor or UAC may of an emergency. with a delinquent act or acts, that make a telephone call to a parent, close (ii) Consistent with the statutory involve violence against a person or the relative, or friend. The notice shall be requirements, DHS will transfer UACs use or carrying of a weapon; provided, read, or explained to the to HHS in accordance with the (iii) Has committed, or has made minor or UAC in a language and manner procedures described in paragraph (f) of credible threats to commit, a violent or that he or she understands. In the event this section. malicious act (whether directed at that a minor or UAC is no longer (h) Detention of family units. DHS’s himself or others) while in Federal or amenable to voluntary departure or to a policy is to maintain family unity, state government custody or while in withdrawal of an application for including by detaining families together the presence of an immigration officer; admission, the minor or UAC will be where appropriate and consistent with (iv) Has engaged, while in the issued a new Form I–770 or the Form law and available resources. If DHS licensed facility, in conduct that has I–770 will be updated, as needed. determines that detention of a family proven to be unacceptably disruptive of (ii) Notice of Right to Judicial Review. unit is required by law, or is otherwise the normal functioning of the licensed Every minor who is not a UAC who is appropriate, the family unit may be facility in which the minor has been transferred to or remains in a DHS transferred to an FRC which is a placed and transfer to another facility is detention facility will be provided with licensed facility and non-secure. necessary to ensure the welfare of the a Notice of Right to Judicial Review, (i) Detention of minors who are not minor or others, as determined by the which informs the minor of his or her UACs in DHS custody. In any case in staff of the licensed facility; right to seek judicial review in United which DHS does not release a minor (v) Is determined to be an escape-risk States District Court with jurisdiction who is not a UAC, said minor shall pursuant to paragraph (b)(6) of this and venue over the matter if the minor remain in DHS detention. Consistent section; or believes that his or her detention does with 6 CFR 115.14, minors shall be (vi) Must be held in a secure facility not comply with the terms of paragraph detained in the least restrictive setting for his or her own safety. (i) of this section. The Notice shall be appropriate to the minor’s age and (2) DHS will not place a minor who read and explained to the minor in a special needs, provided that such is not a UAC in a secure facility language and manner that he or she setting is consistent with the need to pursuant to paragraph (i)(1) if there are understands. protect the minor’s well-being and that less restrictive alternatives that are (iii) Current list of counsel. Every of others, as well as with any other laws, available and appropriate in the minor who is not a UAC who is regulations, or legal requirements. The circumstances, such as transfer to a transferred to or remains in a DHS minor shall be placed temporarily in a facility which would provide intensive detention facility will be provided the licensed facility, which will be non- staff supervision and counseling free legal service provider list, prepared secure, until such time as release can be services or another licensed facility. All pursuant to section 239(b)(2) of the Act. effected or until the minor’s determinations to place a minor in a

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secure facility will be reviewed and may be able to assist in family and verbal), expectations and the approved by the ICE Juvenile reunification; availability of legal assistance; Coordinator referenced in paragraph (o) (iv) Educational services appropriate (x) Whenever possible, access to of this section. Secure facilities shall to the minor’s level of development and religious services of the minor’s choice; permit attorney-client visits in communication skills in a structured (xi) Visitation and contact with family accordance with applicable facility rules classroom setting, Monday through members (regardless of their and regulations. Friday, which concentrates primarily on immigration status) which is structured (3) Unless a secure facility is the development of basic academic to encourage such visitation. The staff otherwise authorized pursuant to this competencies and secondarily on shall respect the minor’s privacy while section, ICE facilities used for the English Language Training (ELT). The reasonably preventing the unauthorized detention of minors who are not UACs educational program should include release of the minor and preventing the shall be non-secure facilities. subjects similar to those found in U.S. transfer of contraband; (4) Non-secure, licensed ICE facilities programs and include science, social (xii) A reasonable right to privacy, to which minors who are not UACs are studies, math, reading, writing, and which shall include the right to: transferred pursuant to the procedures physical education. The program design (A) Wear his or her own clothes, in paragraph (e) of this section shall should be appropriate for the minor’s when available; abide by applicable family residential estimated length of stay and can include (B) Retain a private space in the standards established by ICE. At a the necessary skills appropriate for residential facility for the storage of minimum, such standards shall include transition into a U.S. school district. personal belongings; provisions or arrangements for the The program should also include (C) Talk privately on the phone, as following services for each minor who acculturation and adaptation services permitted by applicable facility rules is not a UAC in its care: which include information regarding and regulations; (D) Visit privately with guests, as (i) Proper physical care and the development of social and inter- permitted by applicable facility rules maintenance, including suitable living, personal skills that contribute to those and regulations; and accommodations, food and snacks, abilities as age appropriate; (v) Appropriate reading materials in (E) Receive and send uncensored mail appropriate clothing, and personal languages other than English for use unless there is a reasonable belief that grooming items; during the minor’s leisure time; the mail contains contraband; (ii) Appropriate routine medical, (vi) Activities according to a (xiii) When necessary, mental health and dental care, family recreation and leisure time plan which communication with adult relatives planning services, and emergency shall include daily outdoor activity, living in the United States and in health care services, including a weather permitting, at least one hour foreign countries regarding legal issues complete medical examination per day of large muscle activity and one related to the release and/or removal of (including screening for infectious hour per day of structured leisure time the minor; disease) within 48 hours of admission, activities (this should not include time (xiv) Legal services information excluding weekends and holidays, spent watching television). Activities regarding the availability of free legal unless the minor was recently examined should be increased to a total of three assistance, the right to be represented by at another facility; appropriate hours on days when school is not in counsel at no expense to the immunizations in accordance with the session; Government, the right to apply for U.S. Public Health Service (PHS), (vii) At least one individual asylum or to request voluntary Centers for Disease Control and counseling session or mental health departure; Prevention; administration of prescribed wellness interaction (if the minor does (xv) Attorney-client visits in medication and special diets; not want to participate in a counseling accordance with applicable facility rules appropriate mental health interventions session) per week conducted by trained and regulations; when necessary; social work staff with the specific (xvi) Service delivery is to be (iii) An individualized needs objectives of reviewing the minor’s accomplished in a manner which is assessment which includes: progress, establishing new short-term sensitive to the age, culture, native (A) Various initial intake forms; objectives, and addressing both the language, and the complex needs of (B) Essential data relating to the developmental and crisis-related needs each minor; identification and history of the minor of each minor; (xvii) Parents/legal guardians will be and family; (viii) Group counseling sessions at responsible for supervising their (C) Identification of the minor’s least twice a week. This is usually an children and providing parental support special needs including any specific informal process and takes place with in managing their children’s behavior. problem(s) which appear to require all the minors present and can be held Licensed facility rules and discipline immediate intervention; in conjunction with other structured standards shall be formulated with (D) An educational assessment and activities. It is a time when new minors consideration for the range of ages and plan; present in the facility are given the maturity in the program and shall be (E) An assessment of family opportunity to get acquainted with the culturally sensitive to the needs of alien relationships and interaction with staff, other children, and the rules of the minors. DHS shall not subject minors to adults, peers and authority figures; program. It is an open forum where corporal punishment, humiliation, (F) A statement of religious preference everyone gets a chance to speak. Daily mental abuse, or punitive interference and practice; program management is discussed and with the daily functions of living, such (G) An assessment of the minor’s decisions are made about recreational as eating or sleeping. Any sanctions personal goals, strengths and activities, etc. It is a time for staff and employed shall not adversely affect a weaknesses; and minors to discuss whatever is on their minor’s health, or physical or (H) Identifying information regarding minds and to resolve problems; psychological well-being; or deny immediate family members, other (ix) Upon admission, a minors regular meals, sufficient sleep, relatives, godparents, or friends who comprehensive orientation regarding exercise, medical care, correspondence may be residing in the United States and program intent, services, rules (written privileges, or legal assistance;

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(xviii) Licensed facilities will warranting release on parole if DHS carrier in use, the possessions shall be maintain and safeguard individual case determines that detention is not shipped to the minor or UAC in a timely records. Agencies and organizations will required to secure the minor’s timely manner. maintain a system of accountability appearance before DHS or the (2) Notice to counsel. A minor or UAC which preserves the confidentiality of immigration court, or to ensure the who is represented will not be client information and protects the minor’s safety and well-being or the transferred from one ICE placement to records from unauthorized use or safety of others. In making this another, or from an ICE placement to an disclosure; determination, DHS may consider ORR placement, until notice is provided (xix) Licensed facilities will maintain aggregate and historical data, officer to his or her counsel, except in unusual adequate records and make regular experience, statistical information, or and compelling circumstances, such as reports as required by DHS that permit any other probative information. The where the safety of the minor or UAC DHS to monitor and enforce the determination whether to parole a or others is threatened or the minor or regulations in this part and other minor who is not a UAC is in the UAC has been determined to be an requirements and standards as DHS may unreviewable discretion of DHS. escape-risk, or where counsel has determine are in the best interests of the (5) If DHS determines to release a waived such notice. In unusual and minors; and minor who is not a UAC during removal compelling circumstances, notice will (xx) Licensed facilities will maintain proceedings under section 240 of the be sent to counsel within 24 hours a grievance and complaint filing process Act, the following procedures shall following the transfer. for aliens housed therein and post apply: (l) Notice to parent of refusal of information about the process in a (i) If a parent or legal guardian is release or application for relief. (1) A common area of the facility. Aliens will available to provide care and physical parent shall be notified of any of the be required to follow the proscribed custody, DHS will make prompt and following requests if the parent is process for filing formal and informal continuous efforts to release the minor present in the United States and can grievances against facility staff that to that parent or legal guardian. Nothing reasonably be contacted, unless such comports with the ICE Family in this paragraph (j)(5)(i) precludes the notification is otherwise prohibited by Residential Standards Grievance release of a minor who is not a UAC to law or DHS determines that notification Procedures. Complaints regarding an adult relative (brother, sister, aunt, of the parent would pose a risk to the conditions of detention shall be filed uncle, or grandparent) who is not in minor’s safety or well-being: under the procedures required by the detention and is available to provide (i) A minor or UAC in DHS custody DHS Office of the Inspector General or care and physical custody. Release of a refuses to be released to his or her the DHS Office of Civil Rights and Civil minor who is not a UAC to an adult parent; or Liberties. Staff is prohibited from relative other than a parent or legal (ii) A minor or a UAC seeks release retaliating against anyone who files, or guardian is within the unreviewable from DHS custody or seeks voluntary on whose behalf is filed, a grievance or discretion of DHS. departure or a withdrawal of an complaint. In the event of an (ii) Prior to releasing a minor who is application for admission, parole, or any emergency, a licensed, non-secure not a UAC to an adult relative pursuant form of relief from removal before DHS, facility described in this paragraph (i) to paragraph (j)(5)(i) of this section, DHS and that the grant of such request or may transfer temporary physical will use all available reliable evidence relief may effectively terminate some custody of a minor prior to securing to determine whether the relationship is interest inherent in the parent-child permission from DHS, but shall notify bona fide. If no reliable evidence is relationship and/or the minor or UAC’s DHS of the transfer as soon as is available that confirms the relationship, rights and interests are adverse with practicable thereafter, but in all cases DHS may continue to keep the minor those of the parent. within 8 hours. who is not a UAC in custody or treat the (2) Upon notification, the parent will (j) Release of minors who are not minor as a UAC and transfer the UAC be afforded an opportunity to present UACs from DHS custody. (1) DHS will to HHS custody, as outlined in his or her views and assert his or her make and record prompt and paragraph (f) of this section. interest to DHS before a determination continuous efforts on its part toward the (iii) DHS shall assist without undue is made as to the merits of the request release of the minor who is not a UAC. delay in making transportation for relief. (2) If a minor who is not a UAC is in arrangements to the DHS office nearest (m) Bond hearings. Bond expedited removal proceedings the location of the relative to whom a determinations made by DHS for minors (including if he or she is awaiting a minor is to be released. DHS may, in its who are in removal proceedings credible fear determination), or is discretion, provide transportation to pursuant to section 240 of the Act and subject to a final expedited removal minors. who are also in DHS custody may be order, custody is governed by (iv) Nothing herein shall require DHS reviewed by an immigration judge § 235.3(b)(2)(iii) or (b)(4)(ii) of this to release a minor to any person or pursuant to 8 CFR part 1236 to the chapter, as applicable. agency whom DHS has reason to believe extent permitted by 8 CFR 1003.19. (3) If a minor who is not a UAC is may harm or neglect the minor or fail Minors in DHS custody who are not in subject to pending removal proceedings to present him or her before DHS or the section 240 proceedings are ineligible to under section 240 of the Act, DHS will immigration courts when requested to seek review by an immigration judge of consider whether to release the minor do so. their DHS custody determinations. pursuant to section 212(d)(5) or section (k) Procedures upon transfer—(1) (n) Retaking custody of a previously 236(a), and the implementing Possessions. Whenever a minor or UAC released minor. (1) In addition to the regulations in 8 CFR 212.5 and § 235.3, is transferred from one ICE placement to ability to make a UAC determination as applicable. another, or from an ICE placement to an upon each encounter as set forth in (4) The parole of minors who are not ORR placement, he or she will be paragraph (c) of this section, DHS may UACs who are detained pursuant to transferred with all possessions and take a minor back into custody if there section 235(b)(1)(B)(ii) of the Act or legal papers; provided, however, that if is a material change in circumstances § 235.3(c) of this chapter will generally the minor or UAC’s possessions exceed indicating the minor is an escape-risk, a serve an urgent humanitarian reason the amount normally permitted by the danger to the community, or has a final

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order of removal. If the minor is 410.203 Criteria for placing an agreed to in the settlement agreement accompanied, DHS shall place the unaccompanied alien child in a secure reached in Jenny Lisette Flores v. Janet minor in accordance with paragraphs (e) facility. Reno, Attorney General of the United and (i) of this section. If the minor is a 410.204 Considerations when determining States, Case No. CV 85–4544–RJK (C.D. whether an unaccompanied alien child UAC, DHS shall transfer the minor into is an escape risk. Cal. 1996). ORR operates the UAC HHS custody in accordance with 410.205 Applicability of § 410.203 for program as authorized by section 462 of paragraph (e) of this section. placement in a secure facility. the Homeland Security Act of 2002, (2) DHS may take a minor back into 410.206 Information for unaccompanied Public Law 107–296, 6 U.S.C. 279, and custody if there is no longer a parent, alien children concerning the reasons for section 235 of the William Wilberforce legal guardian, or other adult relative his or her placement in a secure or staff Trafficking Victims Protection (brother, sister, aunt, uncle, or secure facility. Reauthorization Act of 2008 (TVPRA), grandparent) available to care for the 410.207 Custody of an unaccompanied Public Law 110–457, 8 U.S.C. 1232. alien child placed pursuant to this minor. If the minor is a UAC, DHS will subpart. This part does not govern or describe transfer custody to HHS as outlined in 410.208 Special needs minors. the entire program. paragraph (e) of this section. 410.209 Procedures during an emergency or § 410.101 Definitions. (3) Minors who are not UACs and influx. who are taken back into DHS custody DHS means the Department of Subpart C—Releasing an Unaccompanied may request a custody redetermination Alien Child From ORR Custody Homeland Security. hearing in accordance with paragraph Director means the Director of the (m) of this section and to the extent Sec. Office of Refugee Resettlement (ORR), 410.300 Purpose of this subpart. permitted by 8 CFR 1003.19. 410.301 Sponsors to whom ORR releases an Administration for Children and (o) Monitoring. (1) CBP and ICE each unaccompanied alien child. Families, Department of Health and shall identify a Juvenile Coordinator for 410.302 Sponsor suitability assessment Human Services. the purpose of monitoring compliance process requirements leading to release Emergency means an act or event with the terms of this section. of an unaccompanied alien child from (including, but not limited to, a natural (2) In addition to the monitoring ORR custody to a sponsor. disaster, facility fire, civil disturbance, required by paragraph (o)(1) of this Subpart D—Licensed Programs or medical or public health concerns at section, the Juvenile Coordinators shall Sec. one or more facilities) that prevents collect and periodically examine 410.400 Purpose of this subpart. timely transport or placement of UACs, relevant statistical information about 410.401 Applicability of this subpart. or impacts other conditions provided by UACs and minors who remain in CBP 410.402 Minimum standards applicable to this part. or ICE custody for longer than 72 hours. licensed programs. Escape risk means there is a serious Such statistical information may 410.403 Ensuring that licensed programs risk that an unaccompanied alien child include but not necessarily be limited are providing services as required by the (UAC) will attempt to escape from to: regulations in this part. custody. (i) Biographical information; Subpart E—Transportation of an Influx means a situation in which (ii) Dates of custody; and Unaccompanied Alien Child there are, at any given time, more than (iii) Placements, transfers, removals, Sec. 130 minors or UACs eligible for or releases from custody, including the 410.500 Conducting transportation for an placement in a licensed facility under reasons for a particular placement. unaccompanied alien child in ORR’s this part or corresponding provisions of DEPARTMENT OF HEALTH AND custody. DHS regulations, including those who HUMAN SERVICES Subpart F—Transfer of an Unaccompanied have been so placed or are awaiting Alien Child such placement. 45 CFR Chapter IV Sec. Licensed program means any ■ For the reasons set forth in the 410.600 Principles applicable to transfer of program, agency, or organization that is preamble, chapter IV of title 45 of the an unaccompanied alien child. licensed by an appropriate State agency Code of Federal Regulations is amended Subpart G—Age Determinations to provide residential, group, or foster by adding part 410 to read as follows: care services for dependent children, Sec. including a program operating group PART 410—CARE AND PLACEMENT 410.700 Conducting age determinations. 410.701 Treatment of an individual who homes, foster homes, or facilities for OF UNACCOMPANIED ALIEN appears to be an adult. special needs UAC. A licensed program CHILDREN must meet the standards set forth in Subpart H—Unaccompanied Alien § 410.402. All homes and facilities Subpart A—Care and Placement of Children’s Objections to ORR Unaccompanied Alien Children Determinations operated by a licensed program, including facilities for special needs Sec. Sec. minors, are non-secure as required 410.100 Scope of this part. 410.800 Purpose of this subpart. 410.101 Definitions. 410.801 Procedures. under State law. However, a facility for 410.102 ORR care and placement of 410.810 Hearings. special needs minors may maintain that unaccompanied alien children. level of security permitted under State Authority: 6 U.S.C. 279, 8 U.S.C. law which is necessary for the Subpart B—Determining the Placement of 1103(a)(3), 8 U.S.C. 1232. an Unaccompanied Alien Child protection of a UAC or others in appropriate circumstances, e.g., cases in Sec. Subpart A—Care and Placement of Unaccompanied Alien Children which a UAC has drug or alcohol 410.200 Purpose of this subpart. problems or is mentally ill. 410.201 Considerations generally § 410.100 Scope of this part. applicable to the placement of an ORR means the Office of Refugee unaccompanied alien child. This part governs those aspects of the Resettlement, Administration for 410.202 Placement of an unaccompanied care, custody, and placement of Children and Families, Department of alien child in a licensed program. unaccompanied alien children (UACs) Health and Human Services.

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Secure facility means a State or status, the alien is no longer a UAC. An separate accommodations for minors, or county juvenile detention facility or a alien who is no longer a UAC is not a State or county juvenile detention secure ORR detention facility, or a eligible to receive legal protections facility. In addition to the requirement facility with an ORR contract or limited to UACs. that UACs shall be separated from cooperative agreement having separate delinquent offenders, every effort must accommodations for minors. A secure § 410.102 ORR care and placement of be taken to ensure that the safety and unaccompanied alien children. facility does not need to meet the well-being of the UAC detained in these requirements of § 410.402, and is not (a) ORR coordinates and implements facilities are satisfactorily provided for defined as a ‘‘licensed program’’ or the care and placement of UAC who are by the staff. ORR makes all reasonable ‘‘shelter’’ under this part. in ORR custody by reason of their efforts to place each UAC in a licensed Shelter means a licensed program that immigration status. program as expeditiously as possible. meets the standards set forth in (b) For all UACs in ORR custody, DHS (f) ORR makes and records the prompt § 410.402. and DOJ (Department of Justice) handle and continuous efforts on its part Special needs minor means a UAC other matters, including immigration toward family reunification. ORR whose mental and/or physical condition benefits and enforcement matters, as set continues such efforts at family requires special services and treatment forth in their respective statutes, reunification for as long as the minor is by staff. A UAC may have special needs regulations and other authorities. in ORR custody. due to drug or alcohol abuse, serious (c) ORR shall hold UACs in facilities emotional disturbance, mental illness, that are safe and sanitary and that are § 410.202 Placement of an unaccompanied intellectual disability, or a physical consistent with ORR’s concern for the alien child in a licensed program. condition or chronic illness that particular vulnerability of minors. ORR places UACs into a licensed requires special services or treatment. A (d) Within all placements, UACs shall program promptly after a UAC is UAC who has suffered serious neglect or be treated with dignity, respect, and transferred to ORR legal custody, except abuse may be considered a special special concern for their particular in the following circumstances: needs minor if the UAC requires special vulnerability. (a) A UAC meeting the criteria for placement in a secure facility set forth services or treatment as a result of Subpart B—Determining the Placement in § 410.203; neglect or abuse. of an Unaccompanied Alien Child Sponsor, also referred to as custodian, (b) As otherwise required by any court means an individual (or entity) to whom § 410.200 Purpose of this subpart. decree or court-approved settlement; or, ORR releases a UAC out of ORR This subpart sets forth what ORR (c) In the event of an emergency or custody. considers when placing a UAC in a influx of UACs into the United States, Staff secure facility means a facility particular ORR facility, in accordance in which case ORR places the UAC as that is operated by a program, agency or with the Flores settlement agreement. expeditiously as possible in accordance organization licensed by an appropriate with § 410.209; or State agency and that meets the § 410.201 Considerations generally (d) If a reasonable person would standards for licensed programs set applicable to the placement of an conclude that the UAC is an adult forth in § 410.402. A staff secure facility unaccompanied alien child. despite his or her claims to be a minor. is designed for a UAC who requires (a) ORR places each UAC in the least close supervision but does not need restrictive setting that is in the best § 410.203 Criteria for placing an interest of the child and appropriate to unaccompanied alien child in a secure placement in a secure facility. It facility. provides 24-hour awake supervision, the UAC’s age and special needs, custody, care, and treatment. It provided that such setting is consistent (a) Notwithstanding § 410.202, ORR maintains stricter security measures, with its interests to ensure the UAC’s may place a UAC in a secure facility if such as intensive staff supervision, than timely appearance before DHS and the the UAC: a shelter in order to control problem immigration courts and to protect the (1) Has been charged with, is behavior and to prevent escape. A staff UAC’s well-being and that of others. chargeable, or has been convicted of a secure facility may have a secure (b) ORR separates UACs from crime, or is the subject of delinquency perimeter but is not equipped internally delinquent offenders. proceedings, has been adjudicated with major restraining construction or (c) ORR makes reasonable efforts to delinquent, or is chargeable with a procedures typically associated with provide placements in those delinquent act, and where ORR deems correctional facilities. geographical areas where DHS those circumstances demonstrate that Unaccompanied alien child (UAC) apprehends the majority of UAC. the UAC poses a danger to self or others. means: (d) Facilities where ORR places UACs ‘‘Chargeable’’ means that ORR has (1) An individual who: Has no lawful will provide access to toilets and sinks, probable cause to believe that the UAC immigration status in the United States; drinking water and food as appropriate, has committed a specified offense. The has not attained 18 years of age; and medical assistance if a UAC is in need provision in this paragraph (a)(1) does with respect to whom: of emergency services, adequate not apply to a UAC whose offense is: (i) There is no parent or legal guardian temperature control and ventilation, (i) An isolated offense that was not in the United States; or adequate supervision to protect UAC within a pattern or practice of criminal (ii) No parent or legal guardian in the from others, and contact with family activity and did not involve violence United States is available to provide members who were arrested with the against a person or the use or carrying care and physical custody. minor. of a weapon; or (2) When an alien previously (e) If there is no appropriate licensed (ii) A petty offense, which is not determined to have been a UAC has program immediately available for considered grounds for stricter means of reached the age of 18, when a parent or placement of a UAC pursuant to this detention in any case; legal guardian in the United States is subpart, and no one to whom ORR may (2) While in DHS or ORR’s custody or available to provide care and physical release the UAC pursuant to subpart C while in the presence of an immigration custody for such an alien, or when such of this part, the UAC may be placed in officer, has committed, or has made alien has obtained lawful immigration an ORR-contracted facility, having credible threats to commit, a violent or

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malicious act (whether directed at § 410.205 Applicability of § 410.203 for ORR will attempt to locate emergency himself/herself or others); placement in a secure facility. placements in geographic areas where (3) Has engaged, while in a licensed ORR does not place a UAC in a secure culturally and linguistically appropriate program or staff secure facility, in facility pursuant to § 410.203 if less community services are available. conduct that has proven to be restrictive alternatives are available and (d) In the event that the number of unacceptably disruptive of the normal appropriate under the circumstances. UAC needing placement exceeds the functioning of the licensed program or ORR may place a UAC in a staff secure available appropriate placements on the staff secure facility in which he or she facility or another licensed program as emergency placement list, ORR works has been placed and removal is an alternative to a secure facility. with governmental and nongovernmental organizations to locate necessary to ensure the welfare of the § 410.206 Information for unaccompanied UAC or others, as determined by the alien children concerning the reasons for additional placements through licensed staff of the licensed program or staff his or her placement in a secure or staff programs, county social services secure facility (e.g., drug or alcohol secure facility. departments, and foster family agencies. abuse, stealing, fighting, intimidation of Within a reasonable period of time, (e) ORR maintains a list of UACs others, or sexually predatory behavior), ORR provides each UAC placed or affected by the emergency or influx and ORR determines the UAC poses a transferred to a secure or staff secure including each UAC’s: danger to self or others based on such facility with a notice of the reasons for (1) Name; conduct; the placement in a language the UAC (2) Date and country of birth; (4) For purposes of placement in a understands. (3) Date of placement in ORR’s secure residential treatment centers custody; and (RTC), if a licensed psychologist or § 410.207 Custody of an unaccompanied (4) Place and date of current alien child placed pursuant to this subpart. psychiatrist determines that the UAC placement. (f) Each year ORR reevaluates the poses a risk of harm to self or others; or A UAC who is placed in a licensed program pursuant to this subpart number of regular placements needed (5) Is otherwise a danger to self or remains in the custody of ORR, and may for UAC to determine whether the others. only be transferred or released under its number of regular placements should be (b) ORR Federal Field Specialists authority. However, in the event of an adjusted to accommodate an increased review and approve all placements of emergency, a licensed program may or decreased number of UAC eligible for UAC in secure facilities consistent with transfer temporarily the physical placement in licensed programs. legal requirements. placement of a UAC prior to securing (c) ORR reviews, at least monthly, the permission from ORR, but must notify Subpart C—Releasing an placement of a UAC into a secure, staff ORR of the transfer as soon as possible, Unaccompanied Alien Child from ORR secure, or RTC facility to determine but in all cases within eight hours of the Custody whether a new level of care is more transfer. Upon release to an approved § 410.300 Purpose of this subpart. appropriate. sponsor, a UAC is no longer in the This subpart covers the policies and custody of ORR. (d) Notwithstanding ORR’s ability procedures used to release, without under the rules in this subpart to place § 410.208 Special needs minors. unnecessary delay, a UAC from ORR UACs who are ‘‘otherwise a danger to custody to an approved sponsor. self or others’’ in secure placements, the ORR assesses each UAC to determine provision in this section does not if he or she has special needs, and if so, § 410.301 Sponsors to whom ORR abrogate any requirements to place places the UAC, whenever possible, in releases an unaccompanied alien child. a licensed program in which ORR places UACs in the least restrictive setting (a) ORR releases a UAC to an unaccompanied alien children without appropriate to their age and special approved sponsor without unnecessary special needs, but which provides needs. delay, but may continue to retain services and treatment for such special custody of a UAC if ORR determines § 410.204 Considerations when needs. determining whether an unaccompanied that continued custody is necessary to alien child is an escape risk. § 410.209 Procedures during an ensure the UAC’s safety or the safety of emergency or influx. others, or that continued custody is When determining whether a UAC is In the event of an emergency or influx required to secure the UAC’s timely an escape risk, ORR considers, among that prevents the prompt placement of appearance before DHS or the other factors, whether: UAC in licensed programs, ORR makes immigration courts. (a) The UAC is currently under a final all reasonable efforts to place each UAC (b) When ORR releases a UAC without order of removal; in a licensed program as expeditiously unnecessary delay to an approved (b) The UAC’s immigration history as possible using the following sponsor, it releases in the following includes: procedures: order of preference: (1) A prior breach of a bond; (a) ORR maintains an emergency (1) A parent; (2) A legal guardian; (2) A failure to appear before DHS or placement list of at least 80 beds at (3) An adult relative (brother, sister, the immigration court; programs licensed by an appropriate state agency that are potentially aunt, uncle, or grandparent); (3) Evidence that the UAC is indebted available to accept emergency (4) An adult individual or entity to organized smugglers for his or her placements. designated by the parent or legal transport; or (b) ORR implements its contingency guardian as capable and willing to care (4) A voluntary departure or a plan on emergencies and influxes. for the UAC’s well-being in: previous removal from the United States (c) Within one business day of the (i) A declaration signed under penalty pursuant to a final order of removal; and emergency or influx, ORR, if necessary, of perjury before an immigration or (c) The UAC has previously contacts the programs on the emergency consular officer; or absconded or attempted to abscond from placement list to determine available (ii) Such other document that state or Federal custody. placements. To the extent practicable, establishes to the satisfaction of ORR, in

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its discretion, the affiant’s parental (6) Notify ORR and DHS if examination (including screening for relationship or guardianship; dependency proceedings involving the infectious disease) within 48 hours of (5) A licensed program willing to UAC are initiated and also notify the admission, excluding weekends and accept legal custody; or dependency court of any immigration holidays, unless the UAC was recently (6) An adult individual or entity proceedings pending against the UAC; examined at another facility; seeking custody, in the discretion of (7) Receive written permission from appropriate immunizations in ORR, when it appears that there is no ORR if the sponsor decides to transfer accordance with the U.S. Public Health other likely alternative to long term legal custody of the UAC to someone Service (PHS), Center for Disease custody, and family reunification does else. Also, in the event of an emergency Control; administration of prescribed not appear to be a reasonable (e.g., serious illness or destruction of the medication and special diets; possibility. home), a sponsor may transfer appropriate mental health interventions § 410.302 Sponsor suitability assessment temporary physical custody of the UAC when necessary; process requirements leading to release of prior to securing permission from ORR, (3) An individualized needs an unaccompanied alien child from ORR but the sponsor must notify ORR as assessment that must include: custody to a sponsor. soon as possible and no later than 72 (i) Various initial intake forms; (a) The licensed program providing hours after the transfer; and (ii) Essential data relating to the care for the UAC shall make and record (8) Notify ORR and DHS as soon as identification and history of the UAC the prompt and continuous efforts on its possible and no later than 24 hours of and family; part towards family reunification and learning that the UAC has disappeared, (iii) Identification of the UAC’s the release of the UAC pursuant to the has been threatened, or has been special needs including any specific provisions of this section. contacted in any way by an individual problems that appear to require (b) ORR requires a background check, or individuals believed to represent an immediate intervention; including verification of identity and immigrant smuggling syndicate or (iv) An educational assessment and which may include verification of organized crime. plan; employment of the individuals offering (f) ORR is not required to release a (v) An assessment of family support, prior to release. UAC to any person or agency it has relationships and interaction with (c) ORR also may require further reason to believe may harm or neglect adults, peers and authority figures; suitability assessment, which may the UAC or fail to present him or her (vi) A statement of religious include interviews of members of the before DHS or the immigration courts preference and practice; household, investigation of the living when requested to do so. (vii) An assessment of the UAC’s conditions in which the UAC would be Subpart D—Licensed Programs personal goals, strengths and placed and the standard of care he or weaknesses; and she would receive, a home visit, a § 410.400 Purpose of this subpart. (viii) Identifying information fingerprint-based background and This subpart covers the standards that regarding immediate family members, criminal records check on the licensed programs must meet in keeping other relatives, godparents or friends prospective sponsor and on adult with the principles of treating UACs in who may be residing in the United residents of the prospective sponsor’s custody with dignity, respect and States and may be able to assist in household, and follow-up visits after special concern for their particular family reunification; release. Any such assessment also takes vulnerability. (4) Educational services appropriate into consideration the wishes and to the UAC’s level of development and concerns of the UAC. § 410.401 Applicability of this subpart. communication skills in a structured (d) If the conditions identified in This subpart applies to all licensed classroom setting, Monday through TVPRA at 8 U.S.C. 1232(c)(3)(B) are programs, regardless of whether they are Friday, which concentrate primarily on met, and require a home study, no providing care in shelters, staff secure the development of basic academic release to a sponsor may occur in the facilities, residential treatment centers, competencies and secondarily on absence of such a home study. or foster care and group home settings. (e) The proposed sponsor must sign English Language Training (ELT), including: an affidavit of support and a custodial § 410.402 Minimum standards applicable release agreement of the conditions of to licensed programs. (i) Instruction and educational and release. The custodial release agreement Licensed programs must: other reading materials in such requires that the sponsor: (a) Be licensed by an appropriate State languages as needed; (1) Provide for the UAC’s physical, agency to provide residential, group, or (ii) Instruction in basic academic mental, and financial well-being; foster care services for dependent areas that include science, social (2) Ensure the UAC’s presence at all children; studies, math, reading, writing, and future proceedings before DHS and the (b) Comply with all applicable state physical education; and immigration courts; child welfare laws and regulations and (iii) The provision to a UAC of (3) Ensure the UAC reports for all state and local building, fire, health appropriate reading materials in removal from the United States if so and safety codes; languages other than English for use ordered; (c) Provide or arrange for the during the UAC’s leisure time; (4) Notify ORR, DHS, and the following services for each UAC in care, (5) Activities according to a recreation Executive Office for Immigration including: and leisure time plan that include daily Review of any change of address within (1) Proper physical care and outdoor activity, weather permitting, at five days following a move; maintenance, including suitable living least one hour per day of large muscle (5) Notify ORR and DHS at least five accommodations, food, appropriate activity and one hour per day of days prior to the sponsor’s departure clothing, and personal grooming items; structured leisure time activities, which from the United States, whether the (2) Appropriate routine medical and do not include time spent watching departure is voluntary or pursuant to a dental care, family planning services, television. Activities must be increased grant of voluntary departure or an order and emergency health care services, to at least three hours on days when of removal; including a complete medical school is not in session;

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(6) At least one individual counseling government, the right to a removal discretion, provide transportation to session per week conducted by trained hearing before an immigration judge, the UAC. social work staff with the specific right to apply for asylum or to request objectives of reviewing the UAC’s voluntary departure in lieu of removal; Subpart F—Transfer of an progress, establishing new short-term (d) Deliver services in a manner that Unaccompanied Alien Child is sensitive to the age, culture, native objectives, and addressing both the § 410.600 Principles applicable to transfer developmental and crisis-related needs language and the complex needs of each of an unaccompanied alien child. of each UAC; UAC; (7) Group counseling sessions at least (e) Formulate program rules and (a) ORR transfers a UAC from one twice a week. This is usually an discipline standards with consideration placement to another with all of his or informal process and takes place with for the range of ages and maturity in the her possessions and legal papers. all the UACs present. This is a time program and that are culturally sensitive (b) If the UAC’s possessions exceed when new UACs are given the to the needs of each UAC to ensure the the amount permitted normally by the opportunity to get acquainted with the following: carrier in use, the possessions are staff, other children, and the rules of the (1) UAC must not be subjected to shipped to the UAC in a timely manner. program. It is an open forum where corporal punishment, humiliation, (c) ORR does not transfer a UAC who everyone gets a chance to speak. Daily mental abuse, or punitive interference is represented by counsel without program management is discussed and with the daily functions of living, such advance notice to his or her legal decisions are made about recreational as eating or sleeping: And counsel. However, ORR may provide and other program activities, etc. This is (2) Any sanctions employed must not: notice to counsel within 24 hours of the a time for staff and UACs to discuss (i) Adversely affect either a UAC’s transfer in unusual and compelling whatever is on their minds and to health, or physical or psychological circumstances such as: resolve problems; well-being; or (1) Where the safety of the UAC or (8) Acculturation and adaptation (ii) Deny UAC regular meals, others has been threatened; services that include information sufficient sleep, exercise, medical care, (2) The UAC has been determined to regarding the development of social and correspondence privileges, or legal be an escape risk consistent with inter-personal skills that contribute to assistance; § 410.204; or those abilities necessary to live (f) Develop a comprehensive and (3) Where counsel has waived such independently and responsibly; realistic individual plan for the care of notice. (9) Upon admission, a comprehensive each UAC in accordance with the UAC’s Subpart G—Age Determinations orientation regarding program intent, needs as determined by the services, rules (provided in writing and individualized needs assessment. § 410.700 Conducting age determinations. Individual plans must be implemented verbally), expectations and the Procedures for determining the age of availability of legal assistance; and closely coordinated through an operative case management system; an individual must take into account the (10) Whenever possible, access to totality of the circumstances and religious services of the UAC’s choice; (g) Develop, maintain and safeguard individual client case records. Licensed evidence, including the non-exclusive (11) Visitation and contact with use of radiographs, to determine the age family members (regardless of their programs must develop a system of accountability that preserves the of the individual. ORR may require an immigration status) which is structured individual in ORR’s custody to submit to encourage such visitation. The staff confidentiality of client information and protects the records from unauthorized to a medical or dental examination must respect the UAC’s privacy while conducted by a medical professional or reasonably preventing the unauthorized use or disclosure; and (h) Maintain adequate records and to submit to other appropriate release of the UAC; procedures to verify his or her age. If (12) A reasonable right to privacy, make regular reports as required by ORR ORR subsequently determines that such which must include the right to: that permit ORR to monitor and enforce an individual is a UAC, he or she will (i) Wear his or her own clothes, when the regulations in this part and other be treated in accordance with ORR’s available; requirements and standards as ORR may (ii) Retain a private space in the determine are in the interests of the UAC regulations in this part for all residential facility, group or foster home UAC. purposes. for the storage of personal belongings; § 410.403 Ensuring that licensed programs § 410.701 Treatment of an individual who (iii) Talk privately on the phone, as are providing services as required by the appears to be an adult. permitted by the house rules and regulations in this part. If, the procedures in § 410.700 would regulations; ORR monitors compliance with the result in a reasonable person concluding (iv) Visit privately with guests, as terms of the regulations in this part. that an individual is an adult, despite permitted by the house rules and his or her claim to be under the age of regulations; and Subpart E—Transportation of an 18, ORR must treat such person as an (v) Receive and send uncensored mail Unaccompanied Alien Child adult for all purposes. unless there is a reasonable belief that the mail contains contraband; § 410.500 Conducting transportation for an Subpart H—Unaccompanied Alien (13) Family reunification services unaccompanied alien child in ORR’s Children’s Objections to ORR designed to identify relatives in the custody. Determinations United States as well as in foreign (a) ORR does not transport UACs with countries and assistance in obtaining adult detainees. § 410.800 Purpose of this subpart. legal guardianship when necessary for (b) When ORR plans to release a UAC This subpart concerns UACs’ release of the UAC; and from its custody under the family objections to ORR placement. (14) Legal services information reunification provisions at §§ 410.201 regarding the availability of free legal and 410.302, ORR assists without undue § 410.801 Procedures. assistance, the right to be represented by delay in making transportation (a) For UACs not placed in licensed counsel at no expense to the arrangements. ORR may, in its programs, ORR shall—within a

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reasonable period of time—provide a (b) In hearings conducted under this Secretary issues a decision in writing notice of the reasons for housing the section, HHS bears the initial burden of that release of the UAC would result in minor in secure or staff secure facility. production to support its determination a significant danger to the community. Such notice shall be in a language the that a UAC would pose a danger or Such a stay decision must include a UAC understands. flight risk if discharged from HHS’ care description of behaviors of the UAC (b) ORR shall promptly provide each and custody. The burden of persuasion while in care and/or documented UAC not released with: is then on the UAC to show that he or criminal or juvenile behavior records (1) A list of free legal services she will not be a danger to the from the UAC demonstrating that the providers compiled by ORR and that is community or flight risk if released, UAC would present a danger to provided to UAC as part of a Legal using a preponderance of the evidence community if released. Resource Guide for UAC (unless standard. (f) Decisions under this section are previously given to the UAC); and (c) In hearings under this section, the final and binding on the Department, UAC may be represented by a person of (2) The following explanation of the and a UAC may only seek another his or her choosing, at no cost to the right of potential review: hearing under this section if the UAC government. The UAC may present oral ‘‘ORR usually houses persons under can demonstrate a material change in and written evidence to the hearing circumstances. Similarly, ORR may the age of 18 in an open setting, such officer and may appear by video or as a foster or group home, and not in request the hearing officer to make a teleconference. ORR may also choose to new determination under this section if detention facilities. If you believe that present evidence either in writing, or by at least one month has passed since the you have not been properly placed or appearing in person, or by video or original decision, and ORR can show that you have been treated improperly, teleconference. you may call a lawyer to seek assistance. (d) A hearing officer’s decision that a that a material change in circumstances If you cannot afford a lawyer, you may UAC would not be a danger to the means the UAC should no longer be call one from the list of free legal community (or risk of flight) if released released. services given to you with this form.’’ is binding upon ORR, unless the (g) This section cannot be used to determine whether a UAC has a suitable § 410.810 Hearings. provisions of paragraph (e) of this section apply. sponsor, and neither the hearing officer (a) A UAC may request that an (e) A hearing officer’s decision under nor the Assistant Secretary may order independent hearing officer employed this section may be appealed to the the UAC released. by HHS determine, through a written Assistant Secretary of the (h) This section may not be invoked decision, whether the UAC would Administration for Children and to determine the UAC’s placement present a risk of danger to the Families. Any such appeal request shall while in HHS custody. Nor may this community or risk of flight if released. be in writing, and must be received section be invoked to determine level of (1) Requests under this section may be within 30 days of the hearing officer custody for the UAC. made by the UAC, his or her legal decision. The Assistant Secretary will representative, or his or her parent or reverse a hearing officer decision only if Kevin K. McAleenan, legal guardian. there is a clear error of fact, or if the Acting Secretary, Department of Homeland (2) UACs placed in secure or staff decision includes an error of law. Security. secure facilities will receive a notice of Appeal to the Assistant Secretary shall Alex M. Azar II, the procedures under this section and not affect a stay of the hearing officer’s Secretary, Department of Health and Human may use a form provided to them to decision to release the UAC, unless Services. make a written request for a hearing within five business days of such [FR Doc. 2019–17927 Filed 8–22–19; 8:45 am] under this section. hearing officer decision, the Assistant BILLING CODE 9111–28–P; 4184–45–P

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Reader Aids Federal Register Vol. 84, No. 164 Friday, August 23, 2019

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 3 CFR 43529 Presidential Documents 431 ...... 39220, 42830, 43731 Executive orders and proclamations 741–6000 Proclamations: 600...... 41645 The United States Government Manual 741–6000 9913...... 37563 1003...... 41654 9914...... 38847 Other Services 9915...... 43473 12 CFR Electronic and on-line services (voice) 741–6020 Executive Orders: 8...... 43475 Privacy Act Compilation 741–6050 13883...... 38113 201...... 39723 13884...... 38843 204...... 39724 ELECTRONIC RESEARCH Administrative Orders: 248...... 38115 Memorandums: 351...... 38115 World Wide Web Memorandum of July 790...... 38849 19, 2019 ...... 37955 1026...... 37565 Full text of the daily Federal Register, CFR and other publications Presidential 1254...... 41886 is located at: www.govinfo.gov. Determinations: Proposed Rules: Federal Register information and research tools, including Public No. 2019–14 of July 360...... 43732 Inspection List and electronic text are located at: 19, 2019 ...... 38109 1003...... 37804 www.federalregister.gov. No. 2019–21 of July 1006...... 37806 31, 2019 ...... 43035 E-mail Notices: 13 CFR FEDREGTOC (Daily Federal Register Table of Contents Electronic Notice of August 14, Proposed Rules: 302...... 42831 Mailing List) is an open e-mail service that provides subscribers 2019 ...... 41881 315...... 42831 with a digital form of the Federal Register Table of Contents. The 5 CFR digital form of the Federal Register Table of Contents includes 14 CFR HTML and PDF links to the full text of each document. Ch. XXXIII...... 37751 Proposed Rules: 3...... 42799 To join or leave, go to https://public.govdelivery.com/accounts/ 532...... 40297 21...... 39175 USGPOOFR/subscriber/new, enter your email address, then 23...... 41595, 41597 follow the instructions to join, leave, or manage your 7 CFR 25 ...... 38115, 39959, 42804, subscription. 985...... 41883 43037, 43674 PENS (Public Law Electronic Notification Service) is an e-mail 3555...... 42799 39 ...... 37570, 37957, 37959, service that notifies subscribers of recently enacted laws. 38850, 38853, 38855, 38859, 8 CFR 38862, 39176, 41599, 41602, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 103...... 41292 41605, 41609, 41611, 41614, and select Join or leave the list (or change settings); then follow 212...... 41292, 44392 41617, 41621, 41623, 41626, the instructions. 213...... 41292 41629, 41632, 43039, 43676, FEDREGTOC and PENS are mailing lists only. We cannot 214...... 41292 43679, 43681 respond to specific inquiries. 236...... 44392 61...... 42799 Reference questions. Send questions and comments about the 245...... 41292 63...... 42799 Federal Register system to: [email protected] 248...... 41292 65...... 42799 71 ...... 37961, 38865, 39177, The Federal Register staff cannot interpret specific documents or 9 CFR 40227, 41908, 43042 regulations. 318...... 40225 73...... 39960, 39964 381...... 40225 97 ...... 40228, 40230, 40232, FEDERAL REGISTER PAGES AND DATE, AUGUST 40234 10 CFR 382...... 43480 37563–37750...... 1 44223–44392...... 23 26...... 43667 Proposed Rules: 37751–37954...... 2 37...... 43667 25 ...... 39234, 39235, 39237, 37955–38114...... 5 50...... 39684, 43667 42842 38115–38544...... 6 52...... 39684, 41885 39 ...... 37974, 37976, 38146, 38545–38846...... 7 70...... 43667 38887, 38889, 39239, 38847–39174...... 8 72...... 43669 39241,39778, 39782, 39991, 39175–39722...... 9 73...... 43667 41664, 43080, 43085 39723–39958...... 12 708...... 37752 71 ...... 39784, 40299, 40301, 39959–40224...... 13 Proposed Rules: 41937, 41938, 43089 40...... 41644 40225–41594...... 14 15 CFR 72...... 43728 41595–41882...... 15 74...... 41644 315...... 38117 41883–42798...... 16 75...... 41644 744 ...... 40237, 43487, 43493 42799–43036...... 19 150...... 41644 762...... 43487 43037–43472...... 20 429...... 39777, 43529 923...... 38118 43473–43666...... 21 430 ...... 37794, 37970, 39211, Proposed Rules: 43667–44222...... 22 39777, 39980, 42830, 43071, 801...... 38583

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16 CFR Proposed Rules: 61...... 44225 Proposed Rules: 1227...... 37763 16...... 41940 62...... 44225 67...... 37610 1750...... 37767 63...... 44225 29 CFR 65...... 44225 45 CFR Proposed Rules: 4022...... 41635 70...... 43701 Ch. II ...... 42847 410...... 44392 Proposed Rules: 81...... 43508, 44238 Proposed Rules: 17 CFR 103...... 39930 82...... 44225 180...... 39398 75...... 38115 1910...... 41667 147...... 44225 1304...... 39996 200...... 43872 1915...... 41667 180 ...... 38138, 38561, 39761, 1305...... 39996 229...... 39966 1926...... 41667 39768, 40219, 43510, 43703 1610...... 39787 232...... 39966 258...... 39977 1630...... 39787 31 CFR 239...... 39966 272...... 44225 240 ...... 39178, 40247, 43872 561...... 38545 282...... 41636, 44225 47 CFR 249...... 39966 562...... 38545 300 ...... 37962, 38905, 41914 1...... 43046, 43705 255...... 38115 374...... 44225 20...... 37591 274...... 39966 32 CFR 707...... 44225 30...... 43046 721...... 43266 Proposed Rules: 96...... 38551 43...... 43705 763...... 44225 229...... 44358 165...... 42808 54...... 43705 770...... 43517 239...... 44358 268...... 42808 61...... 38566 240...... 44358 311...... 38552 Proposed Rules: 69...... 38566 317...... 39970 30...... 38894 73 ...... 40271, 41917, 43526 19 CFR 633...... 39725 51...... 39244 Proposed Rules: 12...... 41909 701...... 43043 52 ...... 37607, 37812, 37816, 1...... 43764 Proposed Rules: 727...... 37769 38895, 38898, 39244, 40344, 54...... 43543, 43764 111...... 40302 40349, 41672, 41674, 41942, 73...... 41949, 44270 33 CFR 41944, 42871, 42872, 42876, 74...... 37979 21 CFR 100 ...... 37578, 38867, 39187, 42881, 43738, 43741 76...... 37979, 44270 73...... 37573 42809, 43691 62...... 37745 510...... 39179 117...... 43043, 43501 63...... 42704 48 CFR 81...... 40351, 43757 520...... 39179 138...... 39970 Ch. 1...... 38836, 38839, 40216, 82...... 41510 522...... 39179 165 ...... 37578, 37770, 38135, 40223 121...... 41948, 44080 524...... 39179, 39187 38552, 38553, 38869, 38871, 1...... 38838, 40216 131...... 38150 558...... 39179, 39187 39726, 39974, 42809, 42812, 4...... 40216 174...... 37818 1308...... 41913 42814, 43045, 43502, 43694, 12...... 40216 180...... 37818 Proposed Rules: 43696, 43698, 44223 13...... 40216 257...... 40353 15...... 43737 334...... 38873 16...... 38836 271...... 44266 172...... 39785 Proposed Rules: 39...... 40216 282...... 41677 1141...... 42754 100 ...... 37808, 38148, 41670, 52 ...... 38836, 38838, 40216 300...... 37979, 38905 1308...... 43530 43090, 44263 203...... 39201 117...... 37810, 43093 721...... 38158, 40371 22 CFR 212...... 39203 155...... 40329 41 CFR 215...... 39204 147...... 37576 165...... 42869, 43095 217...... 39204 Proposed Rules: Ch. VII...... 37751 334...... 38893 237...... 39203 60...... 41677, 43764 252...... 39201, 39207 23 CFR 34 CFR 61...... 43764 Proposed Rules: 658...... 43686 102-82...... 39994 Ch. III...... 39727, 39736 2...... 39793 24 CFR 42 CFR 19...... 39793 36 CFR 203...... 41846 81...... 37587 52...... 44270 7...... 42815 206...... 41846 409...... 38728 Ch. 2 ...... 41953 242...... 39188, 39744 234...... 41846 412 ...... 38424, 39054, 42044 215...... 39254 Proposed Rules: 219...... 39256 Proposed Rules: 413...... 38728, 42044 220...... 39244 252...... 39254 5...... 43536 418...... 38484 495...... 42044 Ch. 7 ...... 41954 100...... 42854 38 CFR 200...... 43536 Proposed Rules: 49 CFR 38...... 38556 88...... 38177 25 CFR Proposed Rules: 403...... 40482 390...... 40272 169...... 42806 4...... 37594 405...... 38330, 39398 571...... 44254 410 ...... 38330, 39398, 40482 1002...... 38579 39 CFR 26 CFR 412...... 39398 Proposed Rules: 1 ...... 37769, 38866, 44223 3020...... 40258 413...... 38330 107...... 41556 Proposed Rules: 414...... 38330, 40482 171...... 41556 40 CFR 1 ...... 37807, 38148, 38892, 415...... 40482 172...... 41556 40317, 43542, 44258, 44262 1...... 44225 416...... 39398, 40482 173...... 41556 9...... 43266 418...... 40482 178...... 41556 27 CFR 21...... 44225 419...... 39398 179...... 41556 Proposed Rules: 35...... 44225 424...... 40482 180...... 38180, 41556 4...... 39786 49...... 44225 425...... 40482 350...... 44162 5...... 39786 52 ...... 37579, 37772, 37774, 486...... 39398 355...... 44162 7...... 39786 38558, 38876, 38878, 39196, 489...... 40482 388...... 44162 9...... 42863 39754, 39756, 39758, 39976, 498...... 40482 395...... 43097, 44190 26...... 39786 40266, 42819, 42822, 42825, 1001...... 37821 571...... 43563 27...... 39786 43504, 43508, 43699, 43701, 1003...... 37821 576...... 38911 44225, 44233, 44235, 44238 28 CFR 59...... 44225 44 CFR 50 CFR 2...... 43690 60...... 44225 64...... 38563, 41915 18...... 37716

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20...... 38883, 42996 648...... 37778, 43527 Proposed Rules: 635...... 38918 100...... 39188, 39744 660...... 37780, 40296 17 ...... 40006, 41691, 41694 648...... 38919, 43573 218...... 40132 665...... 37592 229...... 37822 660...... 41818, 44272 622 ...... 43526, 43725, 43726 679 ...... 38885, 38886, 39209, 300...... 38912, 43570 679 ...... 38912, 43570, 43576, 635 ...... 38143, 39208, 39774, 43069, 43527, 43727, 43728 600...... 43570 43783 39978, 42827 622...... 37611, 38198 697...... 43785

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in today’s List of Public enacted public laws. To Laws. subscribe, go to http:// LIST OF PUBLIC LAWS Public Laws Electronic listserv.gsa.gov/archives/ Last List August 13, 2019 Notification Service publaws-l.html (PENS) Note: No public bills which Note: This service is strictly have become law were for E-mail notification of new received by the Office of the PENS is a free electronic mail laws. The text of laws is not Federal Register for inclusion notification service of newly available through this service. PENS cannot respond to specific inquiries sent to this address.

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